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Assembly Actions -
Lowercase Senate Actions - UPPERCASE |
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| May 01, 2024 |
referred to cities |
Assembly Bill A10030
2023-2024 Legislative Session
Incorporates the city of Staten Island
download bill text pdfSponsored By
TANNOUSIS
Current Bill Status - In Assembly 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
Actions
co-Sponsors
Mike Reilly
Samuel Pirozzolo
2023-A10030 (ACTIVE) - Details
- See Senate Version of this Bill:
- S8474
- Current Committee:
- Assembly Cities
- Law Section:
- Cities
2023-A10030 (ACTIVE) - Bill Text download pdf
S T A T E O F N E W Y O R K
________________________________________________________________________
10030
I N A S S E M B L Y
May 1, 2024
___________
Introduced by M. of A. TANNOUSIS, REILLY, PIROZZOLO -- read once and
referred to the Committee on Cities
AN ACT to incorporate the city of Staten Island; to enact a charter for
the city of Staten Island; to provide a period of transition prior to
the establishment of the city of Staten Island; to amend the education
law, in relation to the establishment of the city school district of
the city of Staten Island; to amend the education law, in relation to
the transfer of the college of Staten Island of the city university of
New York to the state university of New York; to amend the judiciary
law, in relation to providing for the judiciary within the city of
Staten Island; to amend the public housing law, the education law, the
public authorities law and the private housing finance law, in
relation to providing membership on certain authorities for the city
of Staten Island; to amend the executive law, the elder law and the
social services law, in relation to probation and social services
within the city of Staten Island; to amend the county law, in relation
to the treatment of the county of Richmond in similar fashion to coun-
ties within a city having a population of one million or more; to
amend the election law, the state finance law and the surrogate's
court procedure act, in relation to making conforming changes relating
to the establishment of the city of Staten Island; to amend the gener-
al municipal law, in relation to the city of Staten Island industrial
development agency; to amend the local emergency housing rent control
act, the emergency tenant protection act of nineteen seventy-four, the
general business law and the real property tax law, in relation to the
continuation of existing housing regulations for the city of Staten
Island; to amend the tax law, the state finance law, the public
authorities law and the New York state financial emergency act for the
city of New York, in relation to applicability of the authority of the
financial control board; to amend the general city law, chapter 772 of
the laws of 1966 relating to imposition of a city business tax and the
tax law, in relation to providing authority for the city of Staten
Island to continue presently applicable taxes within such city; to
enact the administrative code of the city of Staten Island, in
relation to procedures and administration of essential city services
and the authority of such city to impose taxes; and making appropri-
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD13972-01-4
A. 10030 2
ations to advance moneys for the establishment of the city of Staten
Island and the city school district of the city of Staten Island
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
THE CITY OF STATEN ISLAND ACT
CONTENTS
SECTION(S) SUBJECT
1-001 Short title.
1-002 Legislative history, findings and intent and statement of
purposes.
1-003 Definitions.
1-004 Incorporation.
2-001 Charter of the city of Staten Island.
3-001 Legislative findings and declaration of purposes.
3-002 Elections.
3-003 Staten Island city government-transition.
3-004 Employees of the city of Staten Island.
3-005 Assistance to the city of Staten Island.
3-006 Provision of municipal services on the city of Staten
Island.
3-007 Debt, property, obligations and other allocations.
3-008 Continuance of municipal services.
3-009 Powers of the city of Staten Island to adopt and amend
local laws.
3-010 Powers of the city of Staten Island relating to home
rule powers.
4-001-4-020 City school district of the city of Staten Island.
5-001-5-003 Transfer of The College of Staten Island.
6-001 Interim court structure for the city of Staten Island.
7-001-7-002 New York city housing authority.
7-003-7-005 New York city construction fund.
7-006-7-008 New York city municipal water finance authority.
7-009 New York city housing development corporation.
7-010 Dormitory authority act; court facilities and combined
occupancy structures.
7-011 New York city school construction authority.
8-001-8-023 Municipal powers; authority of the county of Richmond
and the city of Staten Island.
9-001-9-017 Municipal services; city of Staten Island.
10-001-10-008 Landlord-tenant relationships.
11-001 Constitutional real property tax limitations; city of
Staten Island.
12-001-12-020 Municipal assistance corporation for the city of New York;
revenues.
13-001 Taxes; tax collection authority.
14-001 Administrative code of the city of Staten Island.
15-001 Appropriations; transition government and establishment of
the city of Staten Island.
15-002 Appropriation; city school district of the city of Staten
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Island.
16-001 Severability.
17-001 Effective date.
Section 1-001. Short title. This act shall be known and may be cited
as "The City of Staten Island Act".
§ 1-002. Legislative history, findings and intent and statement of
purposes. 1. The legislature hereby finds, determines and declares:
(a) that Article IX, section 1 of the New York State Constitution
states that "effective local self-government and intergovernmental coop-
eration are purposes of the people of the state" and subdivision (a) of
section 2 of Article IX, further declares that "the legislature shall
provide for the creation and organization of local government;"
(b) that consistent with these constitutional provisions and in order
to provide for an effective republican form of government in accordance
with the constitution of the United States of America, the people of the
state of New York, represented in the senate and assembly, did enact
chapter 773 of the laws of 1989, as amended by chapter 17 of the laws of
1990, which authorized the borough of Staten Island, upon approval by
referendum to consider formally separating from its existing municipal
government, authorized the creation of a charter commission for the city
of Staten Island, authorized, upon approval of a subsequent referendum,
the adoption of a charter, and most importantly, required that within
three months of adoption of the charter by the voters of Staten Island,
the charter commission submit to the governor and the legislature,
proposed legislation enabling the borough of Staten Island to disengage
and separate from its existing municipal government, and that only upon
enactment of such enabling legislation, could the charter for the city
of Staten Island take effect;
(c) that the legislature, in requiring the subsequent enactment of
enabling legislation before a charter for the city of Staten Island
could take effect, reaffirmed its paramount constitutional authority to
distribute the powers of local government, as between city and county
governments, as it deems best;
(d) that preserving historical and natural boundaries, as well as the
integrity of political subdivisions of the state, and providing meaning-
ful representation of the smaller boroughs in the city of New York
affairs, are among those legitimate state interests and policies which
have been validated by the federal courts;
(e) that the people of the state of New York enacted chapter 773 of
the laws of 1989, as subsequently amended, to provide a process by which
the people of Staten Island could carefully study and consider the legal
disengagement and separation of the borough of Staten Island from the
city of New York as an acceptable means of implementing the substantial
state interest in providing effective local self-government for the
citizens of Staten Island; and
(f) that the issues of legal disengagement and separation of the
borough of Staten Island from the city of New York raise concerns of
statewide importance, not limited to Staten Island residents or New York
city residents.
2. The legislature further finds, determines and declares:
(a) that the New York State Constitution entitles the people of Staten
Island to "effective local self-government;"
(b) that the existing charter of the city of New York does not provide
meaningful representation to the borough of Staten Island, therefore
precluding "effective local self-government;"
A. 10030 4
(c) that given the constraints of the United States Supreme Court
articulated in BOARD OF ESTIMATE OF THE CITY OF NEW YORK V. BEVERLY
MORRIS, 489 US 103 (1989), the only viable alternative to providing
"effective local self-government" is legal disengagement and separation
from the city of New York and the creation of the new city of Staten
Island;
(d) that such legal separation of Staten Island from the city of New
York is economically feasible, with minimal fiscal impact on the state
of New York;
(e) that the city of New York should have a meaningful role and the
opportunity to provide significant input in the process by which Staten
Island legally disengages and separates from the city of New York,
including participation in a transition period, but the city of New York
should not in the exercise of the aforesaid role, be permitted to unila-
terally prevent the legal disengagement and separation of Staten Island;
and
(f) that in connection with the process of legal disengagement and
separation, there is hereby specifically delegated to a group of repre-
sentatives from both the city of New York and the proposed city of
Staten Island the task of evaluating and accounting for the allocation
of all assets and liabilities, as well as the provision of municipal
services during the transition period, all of which shall be determined
in the context of the overall best interest of the state of New York.
3. The legislature further finds, determines and declares:
(a) that by virtue of the authority vested in the legislature by the
New York State Constitution to provide for the "creation and organiza-
tion of local governments" as well as for "effective local self-govern-
ment" and "intergovernmental cooperation," the interests of the people
of the state would be served and promoted by the separation and creation
of a new municipality to be called the city of Staten Island; and
(b) that in furtherance of such purposes, the recommendations of the
charter commission shall be implemented in connection with the creation
of the city of Staten Island.
4. The legislature further finds, determines and declares that the
establishment of the city of Staten Island is authorized by the New York
State Constitution, constitutes a state purpose for the benefit of the
people of the state of New York and therefore the city of Staten Island
Act is hereby enacted.
§ 1-003. Definitions. As used in this act, the following terms shall
have the following meanings:
1. "Effective date of this charter" shall mean the first of November
next succeeding the date on which this act shall have become a law.
2. "Date of incorporation of the city of Staten Island" or "date of
incorporation" shall mean the date on which the city of Staten Island is
incorporated, the first of January next succeeding the date on which
this act shall have become a law.
3. "Date of establishment of the city of Staten Island" or "date of
establishment" shall mean the date on which the city of Staten Island is
first authorized to exercise full municipal authority, except for judi-
cial authority, over the citizens and territory of the city of Staten
Island, the first of July in the second year next succeeding the year in
which this act shall have become a law.
4. "Transition period" shall mean the period of time between the date
of incorporation and the first of July in the second year next succeed-
ing the year in which this act shall have become a law from and includ-
ing the date of incorporation until the date of establishment.
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5. "Preceding municipality" shall mean the city government for the
geographical area of the city of Staten Island existing immediately
prior to the incorporation of the city of Staten Island and which shall
exercise full municipal powers and duties for such area during the tran-
sition period.
6. "Judiciary transition period" shall mean the period of time between
the date of incorporation of the city of Staten Island and December
thirty-first in the fifth year following such incorporation or until the
provisions of article 5-C of the judiciary law are specifically super-
seded by state law. At the conclusion of the judiciary transition peri-
od, the city of Staten Island shall be authorized to exercise full judi-
cial authority over the citizens and territory of the city of Staten
Island.
§ 1-004. Incorporation. The city of Staten Island is hereby incorpo-
rated on the first of January next succeeding the date on which this act
shall have become a law. The boundaries of such city shall be as
described in section 1-02 of the charter of the city of Staten Island as
set forth in section 2-001 of this act. During the transition period
such city shall not have the powers or duties of a municipality except
those which are provided for pursuant to this act to provide for the
transition of government and the establishment of such city. During the
transition period, the preceding municipality shall possess and exercise
full municipal powers and duties for the area to become the city of
Staten Island except for those powers and duties as may be provided by
the provisions of this act. Powers and duties of the city of Staten
Island not yet in effect shall remain with the preceding municipality
until such time as those powers and duties are transferred to the city
of Staten Island pursuant to the provisions of this act. Except as
otherwise provided by this act, full powers and duties shall devolve to
the city of Staten Island on the first of July in the second year next
succeeding the date on which this act shall have become a law. The
following powers, duties and functions regarding the judiciary during
the judicial transition period and other matters as jointly determined
by the city of Staten Island and the preceding municipality in accord-
ance with the provisions as outlined elsewhere in this act, will be
shared by both municipalities. The city of Staten Island shall be estab-
lished on the first of July in the second year next succeeding the date
on which this act shall have become a law, on which date the city of
Staten Island shall possess full municipal powers and duties as are
provided under law and the preceding municipality shall cease to possess
municipal powers and duties regarding the city of Staten Island.
§ 2-001. Charter of the city of Staten Island. The city charter of
the city of Staten Island is enacted to read as follows:
Charter of the City of Staten Island
Table of Contents
Preamble
Chapter 1 General Provisions
Chapter 2 Powers of the City
Chapter 3 Mayor
Chapter 4 Common Council
Chapter 5 Comptroller
Chapter 6 The Budgetary Process: Expense and Capital
Chapter 7 Planning Department
Chapter 8 Franchises
Chapter 9 Contracting
A. 10030 6
Chapter 10 Referendum and Amendment
Chapter 11 Property of the City
Chapter 12 Personnel Management
Chapter 13 Equal Employment Practices Commission
Chapter 14 Collective Bargaining
Chapter 15 Transitory Provisions
Chapter 16 Labor Relations
CHARTER OF THE CITY OF STATEN ISLAND
Preamble
The People of Staten Island, exercising their right to propose a
government of their choosing through which all people can be effectively
represented, do hereby adopt this Charter.
The birth of a city, must, of necessity, take place in an aura of
excitement and great expectations. When it occurs at a time when society
is experiencing strong institutional challenges in a climate of skepti-
cism, it places heavy burdens on those responsible for leadership to
sustain a commitment by the people to live and function together as a
community.
The provision of a structure of governance at the local level is an
extraordinary and crucial responsibility. Sophocles wisely observed that
"the city is the people." The City of Staten Island must place a high
premium on assuring meaningful participation of its citizenry in the
governmental decisions affecting their lives.
We must respect the principles of equality and of the social dignity
of all of our residents and provide for the complete development of the
individual, promoting actions which favor the advancement of men and
women in realizing their fullest potential. We must embrace policies
that promote and give effectiveness to the rights of every person, with
particular attention to those who face special challenges, in striving
for a full life.
We must assert a policy of favoring equal opportunity employment for
all women and men. We must foster a culture that is peaceful and non-
violent and that safeguards the rights of all inhabitants to carry out
their lawful activities on Staten Island.
We should give strong supportive efforts for the conservation and
defense of the environment along with the advancement of the cultural
and natural values that sustain them. We consent to be governed by the
new municipality in the belief that a smaller, localized city government
may effectively and responsibly balance the needs of the people with the
cost of providing municipal services.
The City of Staten Island can serve as a model for the promotion of
the common welfare, the guarantor of individual liberties and the guard-
ian of the social, spiritual, economic and cultural concerns of its
inhabitants.
We believe this act of self determination to be in the best interests
of the people of Staten Island and the people of the City of New York
and we hope that together, as sister cities, we can work cooperatively
in efforts of regional concern and for the betterment of New York State.
Chapter 1
General Provisions
§ 1-01. Incorporation.
The citizens of the State of New York from time to time inhabitants of
the territory in the County of Richmond, included in the boundaries set
forth in section 1-02 of this chapter, shall be known as the City of
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Staten Island, and shall be a municipal corporation in perpetuity under
the name of "The City of Staten Island."
§ 1-02. Boundaries.
The City of Staten Island shall consist of all the territory known as
Richmond county, which shall contain all that part of the state, bounded
on the north by the center line of the Kill Van Kull which center line
would extend easterly to the extension of the center line of North River
and Upper New York Bay, then on the east by the extension of the afore-
mentioned center line of Upper New York Bay running southerly through
the Narrows between Richmond county and Kings county and continuing
through Lower New York Bay to the Atlantic Ocean, and bounded on the
south east by the Atlantic Ocean to the boundary of the state of New
York and the state of New Jersey at Raritan Bay, and on the west follow-
ing the center line of the Kill Van Kull and the center line of the
Arthur Kill which is the boundary between the state of New York and the
state of New Jersey, including Staten Island, Island of Meadows, Pralls
Island, Hoffman Island, Swinburne Island, that part of Shooters Island
within the state of New York, and all other islands or parts thereof
situated within the aforedescribed bounds.
Chapter 2
Powers of the City
§ 2-01. Powers.
The city shall have and may exercise all powers necessary for local
self-government and any additional powers and authority which are now or
may be hereafter granted to it under the Constitution or laws of this
State, as fully and completely as though such powers were specifically
enumerated in this Charter and no enumerations of particular powers in
this Charter shall be held to be exclusive but shall be held to be in
addition to this general grant of powers.
§ 2-02. Purposes.
All city powers shall be used to serve and advance the general
welfare, health, happiness, safety and aspirations of its inhabitants,
present and future, and to encourage their full participation in the
process of governance.
Chapter 3
Mayor
§ 3-01. Executive power.
The executive power of the city shall be vested in and exercised by
the mayor as chief executive officer.
§ 3-02. Election; term.
The mayor shall be elected at the first general election following the
effective date of this charter and every fourth year thereafter. The
mayor shall hold office for a term of four years commencing on the first
of January after each such election.
§ 3-03. Qualifications.
The mayor shall be a citizen of the United States, a qualified elector
of the city, and shall have been a resident of the city for at least one
year immediately preceding his/her election.
§ 3-04. Deputy mayor.
The mayor shall appoint and at pleasure remove a deputy mayor who
shall have such powers and duties as may be assigned by the mayor and
who shall act temporarily as mayor in case of the mayor's temporary
inability, absence or illness as is provided by this charter.
§ 3-05. Removal of the mayor.
The mayor may be removed from office by the governor upon charges and
after service upon him or her of a copy of the charges and an opportu-
A. 10030 8
nity to be heard in his or her defense. Pending the preparation and
disposition of charges, the governor may suspend the mayor for a period
not exceeding thirty days.
§ 3-06. Succession.
(a) In case of the suspension of the mayor from office, the mayor's
temporary inability to discharge the powers and duties of the office of
mayor by reason of sickness or otherwise, or the mayor's absence from
the city, the powers and duties of the office of mayor shall devolve
upon the deputy mayor or an acting mayor in case of a vacancy in the
office of deputy mayor pending a special election to fill the vacancy in
the office of mayor as provided in subdivision (c) of this section.
While so acting temporarily as mayor the deputy mayor or acting mayor
shall not exercise any power of appointment to or removal from office;
and shall not, until such suspension, inability or absence shall have
continued nine days, sign, approve or disapprove any local law or resol-
ution, unless the period during which the mayor can act thereon would
expire during said nine days in which case the deputy mayor or acting
mayor in case of a vacancy in the office of deputy mayor shall have the
power to disapprove the same within forty-eight hours before the time to
act expires.
(b) In case of a failure of a person elected as mayor to qualify, or a
vacancy in the office caused by the mayor's resignation, removal, death
or permanent inability to discharge the powers and duties of the office
of mayor, such powers shall devolve upon the deputy mayor or acting
mayor in case of a vacancy in the office of deputy mayor pending a
special election to fill the vacancy for the remainder of the unexpired
term in the office of mayor as provided in subdivision (c) of this
section, such special election to take place thirty days after the proc-
lamation that such vacancy exists.
(c) Within seven days of the occurrence of a vacancy in the office of
mayor, the council shall proclaim the date for the special election to
fill the vacancy required by this subdivision and such election shall
take place thirty days after said proclamation. The council shall
provide notice of such proclamation to the city clerk and board of
elections and publish notice thereof, and the board of elections shall
mail notice of such election to all registered voters within the city
and shall conduct such special election thirty days after the proclama-
tion.
(d) A party nomination of a candidate for the special election to fill
a vacancy in the office of mayor for the remainder of the unexpired term
shall be made in the manner prescribed by the rules of the party.
(e) An independent nominating petition for the nomination of candi-
dates to fill the vacancy must be signed by registered voters numbering
five per centum of the total number of votes cast for governor at the
last gubernatorial election in the city of Staten Island, excluding
blank and void votes, except that not more than two thousand signatures
shall be required upon any such petition.
(f) Any vacancy in the office of mayor that occurs after July tenth
and on or before September nineteenth in any year shall be filled at the
general election held in such year.
(g) Any vacancy that occurs on or after September twentieth in any
year and not later than thirty-seven days before the first Tuesday in
December shall be filled at a special election to be held on the first
Tuesday in December in such year.
A. 10030 9
A person elected to fill a vacancy in the office of mayor at a special
election shall take office immediately upon qualification and fill the
vacancy for the remainder of the unexpired term.
§ 3-07. Appointment and removal of officers and employees.
(a) The mayor shall appoint the heads of administrations, departments,
all commissioners, and all other officers not elected by the people
including a city clerk, except as otherwise provided in this charter or
by law.
(b) The mayor, whenever in his or her judgment the public interest
shall so require, may remove from office any public officer holding
office by appointment from a mayor of the city, except officers for
whose removal other provision is made by law. No public officer shall
hold his or her office for any specific term, except as otherwise
provided by law.
§ 3-08. General Powers.
(a) The mayor, subject to this charter, shall exercise all the powers
vested in the city, except as otherwise provided by law.
(b) The mayor shall have the power:
1. to supervise, direct and control, subject to law, the administra-
tive services and departments of government;
2. to see that the ordinances of the city and laws of the city and
state are properly administered and enforced;
3. to prepare and submit to the council an annual report of his or her
work, which shall be made public and which shall include a summary of
agency service goals, performance measures and actual performance rela-
tive to goals for each service delivery program and an appendix of those
programs which provide abatements or reductions of taxes for businesses
in the city;
4. to prepare and submit a budget message and an expense budget and
capital budget annually to the council for its consideration and neces-
sary action in accordance with this charter and the city code;
5. to call special sessions of the council;
6. to approve or to veto acts of the council in the manner prescribed
by this charter;
7. to inquire into the conduct of any city department, agency, board
or commission, except elected officials and their offices; and to make
investigation as to municipal affairs and, for that purpose, may subpoe-
na witnesses, administer oaths and compel production of books, papers
and other evidence. Failure to obey such subpoena or to produce books,
papers or evidence as ordered under this section shall be punishable as
a misdemeanor;
8. to create or abolish bureaus, divisions or positions within the
executive office of the mayor or city departments as he or she may deem
necessary to fulfill mayoral duties;
9. to delegate to or withdraw from any member of said office, speci-
fied functions, powers and duties, except the mayor's power to act on
local laws or resolutions of the council or to appoint or remove offi-
cials;
10. to perform all such duties as may be presented for the mayor in
this charter, or other law, or by act of the council.
(c) Notwithstanding any other provision of law, the mayor shall have
the powers of a finance board under the local finance law and may exer-
cise such powers without regard to any provision of law prescribing the
voting strength required for a resolution or action of such finance
board, provided, however, that whenever the mayor determines that obli-
gations should be issued and the amount thereof, the mayor shall certify
A. 10030 10
such determination to the comptroller who shall thereupon determine the
nature and term of such obligations and shall arrange for the issuance
thereof.
Chapter 4
Common Council
§ 4-01. Legislative power.
The legislative power of the city shall be vested in and exercised by
the common council, hereinafter referred to as the council, except as
otherwise provided by this charter.
§ 4-02. Number, election and terms of office of council members.
(a) The council shall consist of fifteen members each elected from
separate council districts. Eight council members shall be elected from
districts denominated "A" districts and seven council members shall be
elected from districts denominated "B" districts. The eight council
members who represent "A" districts shall be elected at the general
election to be held in the years ending in seven, one and five. The
seven council members who represent "B" districts shall be elected at
the general election to be held in the years ending in seven, nine and
three.
(b) The boundaries and designations of the council districts shall be
drawn and specified pursuant to section 5 of chapter 773 of the laws of
1989 and shall remain in effect until altered or changed in accordance
with the provisions of this charter. Council members shall be elected at
the first general election following the effective date of this charter,
except as otherwise provided by transition provisions. The term of
office of a council member shall begin on January first following such
election and shall be for either a four-year or two-year period as
provided in subdivision (a) of this section or until a successor is duly
elected and qualified.
§ 4-03. Qualifications.
Each council member shall be a citizen of the United States and shall
have been resident of the city for one year immediately preceding his or
her election and shall reside in the district from which elected while
serving as a council member. Removal of residence from the city or from
the council district following election or during the term of office
shall constitute immediate forfeiture of office and a vacancy shall
exist in the district from which the council member was elected.
§ 4-04. Organization.
The council shall determine the rules of its own proceedings at the
first stated meeting of the council in each year. The council by majori-
ty vote of all its members shall elect one member as speaker and such
other officers as it deems appropriate.
§ 4-05. Vacancy.
(a) The office of a council member shall become vacant upon the
member's death, resignation, removal from office or forfeiture of office
in any manner authorized by law. A council member shall forfeit that
office if the council member violates any express prohibition of this
charter or lacks at any time during the term of office for which he or
she was elected any qualification for the office prescribed by the char-
ter or by law.
(b) Within seven days of the occurrence of a vacancy in the council,
the mayor shall proclaim the date for a special election to fill the
vacancy required by this subdivision and such election shall take place
thirty days after said proclamation. The mayor shall provide notice of
such proclamation to the city clerk and board of elections and publish
notice thereof, and the board of elections shall mail notice of such
A. 10030 11
election to all registered voters within the district in which the
vacancy has occurred and shall conduct such special election thirty days
after the proclamation.
(c) A party nomination of a candidate for the special election to fill
a vacancy in the council for the remainder of the unexpired term shall
be made in the manner prescribed by the rules of the party.
(d) An independent nominating petition for the nomination of candi-
dates to fill the vacancy must be signed by voters numbering five per
centum of the total number of votes cast in the district for governor at
the last gubernatorial election in the city, excluding blank and void
votes, or as provided by the New York state election law.
(e) Any vacancy that occurs in the council after July tenth and on or
before September nineteenth in any year shall be filled at the general
election held in such year.
(f) Any vacancy that occurs on or after September twentieth in any
year and not later than thirty-seven days before the first Tuesday in
December shall be filled at a special election to be held on the first
Tuesday in December in such year.
A person elected to fill a vacancy in the council at a special
election shall take office immediately upon qualification and fill the
vacancy for the remainder of the unexpired term.
§ 4-06. Powers.
(a) All legislative power shall be vested in a council.
(b) The council shall have the following additional powers:
1. to employ or retain its own staff and consultants including a clerk
of the council;
2. to conduct investigations in accordance with the provisions of this
charter;
3. to designate an acting mayor within seventy-two hours of the occur-
rence of a vacancy in both the office of mayor and the office of deputy
mayor;
4. to approve appointments as provided in this charter, except as
otherwise mandated by law;
5. to exercise the power of removal as provided in this charter;
6. to override the veto of a mayor by a two-thirds vote of all the
members;
7. to disapprove within thirty days any proposed designation by the
department of city planning of a landmark, landmark site, interior land-
mark, scenic landmark or historic district, provided however, that in
the absence of any such disapproval the proposed designation shall
become effective thirty days after having been referred to the council
by the department of city planning;
8. to call a meeting at any time between the council and the mayor
jointly to discuss legislation or business of the city in general, and
by a two-thirds vote of all the members to compel the attendance of the
mayor at a council hearing; and
9. to exercise other powers conferred by this charter.
§ 4-07. Clerk of the council.
(a) The council shall appoint a clerk who shall perform such duties as
may be prescribed by law. The clerk so appointed shall be the clerk of
the council and shall serve at the pleasure of the council. The clerk
shall attend the meetings of the council, keep a journal of its
proceedings and discharge such other duties as may be prescribed by this
charter or other law.
(b) The clerk shall keep each local law passed in a book provided for
that purpose, with proper indices, which book shall be deemed a public
A. 10030 12
record of such local laws, and each local law shall be attested by said
clerk. The clerk shall cause to be published all notices, advertising
matters or proceedings as required by the provisions of this charter or
by other law. It shall be the duty of the clerk to keep open for
inspection at all reasonable times the records and minutes of the
proceedings of the council.
§ 4-08. Investigations.
The council shall have the power to investigate any matters within its
jurisdiction relating to the property, affairs, or government of the
city, or to any other powers of the council, or to the effectuation of
the purposes or provisions of this charter or any laws relating to the
city, and to incur expenses therefor which shall be a general city
charge in the absence of an appropriation. The council shall have the
power to require the attendance and examine and take testimony under
oath of such persons as it may deem necessary and to require the
production of books, accounts, papers and other evidence relative to the
inquiry kept by any person which may relate to such investigation or the
attendance of any person having knowledge of the subject matter of the
investigation.
§ 4-09. Local laws.
(a) Except as otherwise provided by law, all legislative action by the
council shall be by local law. Every local law shall contain only one
subject. The title shall clearly refer to the subject matter.
(b) The council shall take no final action on any legislation until a
minimum of three days, exclusive of Sundays, has elapsed from the date
of its introduction, unless the mayor shall have certified as to the
necessity for its immediate passage and such local law be passed by the
affirmative vote of two-thirds of all the council members; provided
however that general plans, development plans and amendments and
revisions thereto shall not be so certified.
(c) Every local law passed by the council shall be certified by the
clerk of the council and shall be presented to the mayor for approval
prior to its effective date. The mayor shall sign the legislation within
ten days if approved, but, if not, shall return it to the council
together with a written statement of his or her objections. The council,
within thirty days may reconsider any legislation disapproved by the
mayor and may pass it by a two-thirds vote of all the members. If the
mayor fails to sign or return legislation to the council with reasons
for disapproval, it shall become law as of its effective date, thirty
days after submission to the mayor.
(d) No proposed local law or budget modification shall be voted on by
a council committee or the council unless it is accompanied by a fiscal
impact statement containing the following information:
1. the fiscal year in which the proposed law or modification would
first become effective and the first fiscal year in which the full
fiscal impact of the law or modification is expected to occur;
2. an estimate of the fiscal impact of the law or modification on the
revenues and expenditures of the city during the fiscal year in which
the law or modification is to first become effective, during the
succeeding fiscal year, and during the first fiscal year in which the
full fiscal impact of the law or modification is expected to occur; and
3. a list of sources of information used in its preparation.
(e) All agency heads shall promptly provide to any council committee
any information that it requests to assist it in preparing a fiscal
impact statement.
§ 4-10. Districting commission.
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(a) There shall be a districting commission consisting of seven
members appointed as provided in this section.
(b) Each member of the commission shall be a citizen of the United
States and shall have been a resident of the city for one year imme-
diately preceding his or her appointment.
(c) The majority leader in the council shall appoint three members of
the commission.
(d) The minority leader in the council shall appoint two members of
the commission.
(e) If only one political party has a council delegation, then the
chairpersons of the county committees of the political party with no
council delegation which, at the time of the last general election for
council preceding the time at which such appointments are required to be
made, had the second and third highest number of votes cast in that
election, shall each appoint one member of the commission.
(f) The mayor shall appoint two additional members who shall not be
members of the same political party.
(g) In the event of a vacancy by death, resignation or otherwise, a
new member enrolled in the same political party from which his or her
predecessor was selected shall be appointed in the same manner as the
member whose departure from the commission created the vacancy and shall
serve for the balance of the term remaining.
(h) The members of the commission shall elect one of the seven members
to serve as the chair of the commission.
§ 4-11. Powers of the districting commission.
(a) Following each decennial census, the commission shall prepare a
plan for dividing the city into districts for the election of council
members.
(b) The commission shall submit its plan to the council for its final
adoption and such plan shall not be subject to any mayoral action in
order to become effective.
§ 4-12. Community advisory boards.
(a) The common council is hereby authorized to create, by local law,
one or more community advisory board districts and corresponding commu-
nity advisory boards to consider the needs of such districts, and to
cooperate with, consult, assist and advise members of the common coun-
cil, as well as any public officer, agency, and local administrators of
such agencies, with respect to any matter relating to the welfare of the
residents of such districts.
(b) The number of community advisory boards and the number of members
appointed to serve on such board or boards shall be determined by the
common council as it deems appropriate.
(c) In addition, the boundary lines of the community advisory board
districts created hereunder shall be coterminous with the boundary lines
of one or more council districts so that no council district shall be
included in more than one community advisory board district.
(d) Members of the community advisory boards shall serve without
compensation and shall serve for not more than two (2) consecutive two-
year terms so as to maximize the opportunities for meaningful partic-
ipation in local government for all city residents, and to preserve the
spirit and long-standing tradition of excellent voluntarism on Staten
Island.
Chapter 5
Comptroller
§ 5-01. Election; term.
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The comptroller shall be elected by the electors of the city at the
same time and for the same term as this charter prescribes for the
mayor. The comptroller shall serve for a term of four years commencing
on the first of January following such election and until a successor is
elected and qualified.
§ 5-02. Powers and duties.
(a) The comptroller shall have the following powers and duties:
1. to advise the mayor and the council on the financial condition of
the city or any phase thereof;
2. to make recommendations, comments and criticisms in regard to the
operations, fiscal policies and financial transactions of the city as he
or she may deem advisable;
3. to audit and investigate all matters relating to or affecting the
finances of the city, including without limitation the performance of
contracts and the receipt and expenditure of city funds, and for such
purpose shall have the power to require the attendance and examine and
take the testimony under oath of such persons as the comptroller may
deem necessary;
4. to submit an annual report to the mayor and the council showing
revenues, receipts and expenditures, the sources from which the revenues
and funds are derived and how they have been disbursed;
5. to inspect, revise and prescribe the form of reports and accounts
of the agencies, trusts, the council and units of government;
6. to audit all agencies, trusts, the council and units of government
whenever the comptroller decides it is necessary or is directed to
conduct such an audit either by the mayor or by the council. The comp-
troller shall be entitled to obtain access to agency records required by
law to be kept confidential, other than records which are protected by
the privileges for attorney-client communications, attorney work
products, or material prepared for litigation, upon a representation by
the comptroller that necessary and appropriate steps will be taken to
protect the confidentiality of such records.
(b) The comptroller shall establish a regular auditing cycle to ensure
that one or more of the programs or activities of each city agency, or
one or more aspects of each agency's operations, is audited at least
once every four years. The audits conducted by the comptroller shall
comply with generally accepted government auditing standards. In accord-
ance with such standards, and before any draft or final audit or audit
report, or portion thereof, may be made public, the comptroller shall
send a copy of the draft audit or audit report to the head of the audit-
ed agency and provide the agency, in writing, with a reasonable deadline
for its review and response. The comptroller shall include copies of any
such agency response in any draft or final audit or audit report, or
portion thereof, which is made public. The comptroller shall send copies
of all final audits and audit reports to the mayor and the council.
(c) The comptroller shall establish for his or her office and for all
city agencies a uniform system of accounting and reporting based on
generally accepted accounting principles.
(d) The comptroller shall perform such other functions and duties as
may be required by other provisions of this charter or by law.
§ 5-03. Qualifications.
The comptroller shall be a citizen of the United States, a qualified
elector of the city, and shall have been a resident of the city for at
least one year immediately preceding his or her election.
§ 5-04. Deputy comptroller.
A. 10030 15
The comptroller shall appoint and at pleasure remove a deputy comp-
troller who in case of a vacancy in the office or in case of the illness
or inability of the comptroller to act shall have the same powers and
perform the same duties as the comptroller. The qualifications of the
nominee for the position of deputy comptroller shall be submitted to the
council by the comptroller and the nominee may be requested to appear in
person before the council to respond to questions concerning those qual-
ifications.
§ 5-05. Vacancy.
(a) Any vacancy in the office of comptroller shall be filled by
special election in accordance with the provisions of this charter. In
the event of a vacancy in the office of the comptroller or whenever by
reason of sickness, absence from the city or suspension from office, the
comptroller shall be prevented from attending to the duties of the
office, the deputy comptroller shall act as comptroller.
(b) Within seven days of the occurrence of a vacancy in the office of
comptroller, the mayor shall proclaim the date for the special election
required by this subdivision and such election shall take place thirty
days after said proclamation. The mayor shall provide notice of such
proclamation to the city clerk and board of elections and publish notice
thereof, and the board of elections shall mail notice of such election
to all registered voters within the city and shall conduct such special
election thirty days after the proclamation.
(c) A party nomination of a candidate for the special election to fill
a vacancy in the office of comptroller for the remainder of the unex-
pired term shall be made in the manner prescribed by the rules of the
party.
(d) An independent nominating petition for the nomination of candi-
dates to fill the vacancy must be signed by registered voters numbering
five per centum of the total number of votes cast for governor at the
last gubernatorial election in the city, excluding blank and void votes,
except that not more than two thousand signatures shall be required upon
any such petition.
(e) Any vacancy in the office of comptroller that occurs after July
tenth and on or before September nineteenth in any year shall be filled
at the general election held in such year.
(f) Any vacancy that occurs on or after September twentieth in any
year and not later than thirty-seven days before the first Tuesday in
December shall be filled at a special election to be held on the first
Tuesday in December in such year.
A person elected to fill a vacancy in the office of comptroller at a
special election shall take office immediately upon qualification and
fill the vacancy for the remainder of the unexpired term.
Chapter 6
The Budgetary Process:
Expense and Capital
§ 6-01. Budgetary responsibilities of the mayor.
(a) The mayor shall annually prepare and submit to the council prelim-
inary and executive budgets, each of which shall present a complete
financial plan for the city and its agencies for the ensuing fiscal year
and the three succeeding fiscal years. Each such budget shall consist of
three parts: the expense budget, which shall set forth proposed appro-
priations for the operating expenses of the city including debt service,
and interfund transfers; the capital budget and program, which shall set
forth proposed appropriations for capital projects; and the revenue
A. 10030 16
budget, which shall set forth the estimated and anticipated revenues and
receipts of the city, as well as any other anticipated sources and uses
of funds.
(b) The mayor shall appoint the director of the budget who shall
assist the mayor in the preparation and the administration of the budg-
et. The director shall perform all such duties in regard to the budget
and related matters as the mayor may direct. The director shall have the
power personally or through representatives, to survey each agency for
the purpose of ascertaining its budgetary requirements. The director may
require any agency, or any officer or employee, to furnish data and
information and to answer inquiries pertinent to the exercise of any of
the director's duties in regard to the budget and related matters.
§ 6-02. Spending pursuant to appropriations.
(a) No money, except for grants or gifts from private entities, shall
be paid from any fund under the management of the city, or any fund
under the management of any agency or officer of the city, or any other
entity the majority of the members of whose board are city officials or
are appointed directly or indirectly by city officials, except in
pursuance of an appropriation by the council or other specific legal
authorization provided, however, that:
1. if at any time the council shall fail to make an appropriation for
the payment of debt service on any debts of the city as they fall due,
or for the payments to the several sinking funds, the officer responsi-
ble for the collection of taxes shall set apart, from the first revenues
thereafter received applicable to the general fund of the city, a sum
sufficient to pay such amounts and shall so apply such sum; and
2. money, the ownership and equitable title of which belongs to an
individual, corporation, organization or government other than the city
and which is being held by any agency or officer of the city pending
transfer of such money to such individual, corporation, organization or
government in accordance with the terms and conditions pursuant to which
it was placed in the custody of such agency or officer, may be trans-
ferred to such individual, corporation, organization or government by
such agency or officer without an appropriation by law provided such
transfers are made in accordance with such terms and conditions; and
3. money or other financial resources may only be transferred from one
fund to another without specific statutory authorization for such a
transfer if that money or those other financial resources are being
loaned temporarily to such other fund and an accurate accounting and
reporting of the balance of financial resources in each fund and of the
amount due by each fund to each other fund is made at the end of each
month; and
4. grants or gifts from private entities exempt from the requirements
of this section, and expenditures of such funds, shall be subject to
disclosure, at least annually, by the responsible agency, officer or
entity in a form and containing such information as the mayor shall
prescribe for this purpose by rule.
(b) The head of each agency of the city, and each entity the majority
of the members of whose board are city officials or individuals
appointed directly or indirectly by city officials, shall, on or before
the fifteenth of October in each year, submit to the mayor and the coun-
cil, in such form as the mayor shall prescribe, a statement of the
sources, amounts and disposition of all money received by such agency or
entity, or by a unit or officer of such agency during the preceding
fiscal year, other than money appropriated for the use of such agency or
entity by the council, or money paid by such agency or entity into the
A. 10030 17
city treasury and reported in the annual report of the comptroller for
such fiscal year. The mayor shall ensure that copies of such statements
are available for public inspection, and shall designate a city officer
to maintain copies of such statements for such purpose.
§ 6-03. Fiscal year.
The fiscal year of the city shall commence on July first in each year
and shall terminate at midnight on the ensuing June thirtieth.
§ 6-04. Budgetary process and timeline.
Except where noted otherwise, each step should be taken not later than
the dates indicated below.
(a) Ten-year capital strategy.
1. Draft: November first in each even-numbered year.
2. Report and hearing on the first draft: January sixteenth in each
odd numbered year.
3. Mayor's issuance: April twenty-sixth in each odd numbered year.
4. Comparison of adopted budget and ten-year capital strategy: thirty
days after the budget is adopted in each year.
(b) Revenue estimation report of the comptroller and mayor.
1. The comptroller shall certify to the mayor the actual revenues for
the previous fiscal year: October thirty-first.
2. The mayor shall report comparing actual revenues to estimated
revenues in the budget as adopted for the previous fiscal year: November
fifteenth.
(c) Departmental estimates and the mayor's preliminary budget public
hearings: such date as the mayor may direct.
(d) Report of the comptroller on capital debt and obligations: Decem-
ber first.
(e) Report of the comptroller on the state of the city's finances to
the council: December fifteenth.
(f) Preliminary certificate of the mayor on capital debt and obli-
gations to the council and comptroller: January sixteenth. At any time
up to the submission of the executive capital budget to the council, the
mayor may amend such preliminary certificate.
(g) Preliminary budget submitted to the council: January sixteenth.
(h) Finance commissioner's estimate of assessed valuation, and state-
ment of taxes due and uncollected submitted to the mayor and council:
February fifteenth.
(i) Comptroller's statement of debt service: March first.
(j) The council's operating budget. March tenth: the council shall
approve and submit to the mayor estimates of its financial needs for the
ensuing fiscal year.
(k) Council committees' preliminary budget hearings on:
1. program objectives and fiscal implications of preliminary budget,
draft ten year capital strategy, city planning director's report on the
draft strategy, and the status of capital projects and expense appropri-
ations previously authorized; and
2. recommendations for any changes in the unit of appropriation struc-
ture, or any change in the memorandum of understanding of the terms and
conditions regarding such units of appropriations; and
3. the council's findings and the net effect of the changes recom-
mended on the preliminary capital budget shall not exceed the maximum
amount set forth in the preliminary certificate: March twenty-fifth.
(l) Executive budget, the four-year financial plan and budget message
with any accompanying reports and schedules submission for the ensuing
fiscal year: April twenty-sixth.
A. 10030 18
(m) Proposed local laws and home rule requests necessary to implement
the recommendations made in the executive budget: as soon after April
twenty-sixth as is practicable.
(n) Executive budget hearings: the council shall hold public hearings
on the budget as presented by the mayor between May sixth and twenty-
fifth.
(o) Amendment and adoption of the executive budget: by June fifth.
1. The council may alter the contents of the budget within the total
revenues estimated by the mayor and the maximum debt for capital, except
for the amounts set aside for the repayment of debt.
2. The budget when adopted by the council shall become effective imme-
diately, except appropriations for the council or appropriations added
to the mayor's executive budget by the council or any changes in terms
and conditions or in the memorandum of understanding regarding such
terms and conditions shall be subject to the mayor's veto.
3. If an expense budget has not been adopted by the fifth of June, the
expense budget and tax rate adopted as modified for the current fiscal
year shall be deemed to have been extended for the new fiscal year until
such time as a new expense budget has been adopted.
4. If a capital budget and a capital program have not been adopted by
the fifth of June the unutilized portion of all prior capital appropri-
ations shall be deemed reappropriated.
(p) Veto of the mayor.
1. The mayor, not later than the fifth day after the council has acted
upon the budget or capital program submitted with the executive budget,
may disapprove:
(i) any increase or addition to any such bill or program;
(ii) any change in any term or condition of the budget;
(iii) any change in a memorandum of understanding regarding the terms
and conditions; or
(iv) any item, term, condition, or provision of a memorandum included
in the budget. The mayor's objections shall be returned in writing to
the council by such date.
2. The council by a two-thirds vote of all the members may override
any disapproval of the mayor; however, if no action by the council is
taken within ten days of such disapproval, the expense budget shall be
deemed adopted as modified by the mayor's disapprovals.
(q) Statement of the amount of the budget and estimate by the mayor.
1. The mayor shall submit to the council, immediately upon the
adoption of a budget, a statement of the amount of the budget as
approved by the council for the ensuing fiscal year and the mayor shall
prepare and submit to the council not later than the fifth of June an
estimate of the probable amount of:
(i) receipts into the city treasury during the ensuing fiscal year
from all the sources of revenue of the general fund; and
(ii) all receipts other than those of the general fund and taxes on
real property. The mayor may include in the statement of the amount of
the budget as approved by the council a confirmation of such amount, and
thereby waive mayoral veto power.
2. If, as a result of the exercise of the mayor's veto, the amount of
the budget for the ensuing fiscal year differs from the amount of the
budget approved by the council, not later than two days after the budget
is finally adopted the mayor shall prepare and submit to the council a
statement setting forth the amount of the budget for the ensuing fiscal
year, and the council shall, if necessary, fix new annual tax rates.
A. 10030 19
3. The mayor, prior to establishing the final estimate of revenues for
the ensuing fiscal year as required by this section, shall consider any
alternative estimate of revenues and which is accompanied by a statement
of the methodologies and assumptions upon which such estimate is based
in such detail as is necessary to facilitate official and public under-
standing of such estimates.
4. Any person or organization may, prior to May fifteenth, submit to
the mayor an official alternative estimate of revenues for consideration
by the mayor. Such estimate shall be in a form prescribed by the mayor.
(r) Fixing of tax rates.
1. The council shall fix the annual tax rates immediately upon the
approval of the budget. The council shall deduct the total amount of
receipts as estimated by the mayor from the amount of the budget, for
the ensuing fiscal year, and shall cause to be raised by tax on real
property such sum as shall be as nearly as possible but not less than,
the balance so arrived at, by fixing tax rates in cents and thousandths
of a cent upon each dollar of assessed valuation. The tax rates shall be
such as to produce a balanced budget within generally accepted account-
ing principles for municipalities.
2. If a budget has not been adopted by the fifth of June, the tax
rates adopted for the current fiscal year shall be deemed to have been
extended for the new fiscal year until such time as a new budget is
adopted.
3. In the event the mayor exercises the veto power, the council shall,
if necessary, fix new annual rates not later than the date the budget is
finally adopted, in accordance with the requirements of paragraph one of
subdivision (s) of this section.
(s) Completing the assessment rolls and fixing of tax rates.
Notwithstanding the provisions of the above subdivisions or any other
provisions of law to the contrary:
1. if the city council has not fixed the tax rates for the ensuing
fiscal year on or before the fifth of June, the commissioner of finance
shall be authorized to complete the assessment rolls using estimated
rates and to collect the sums therein mentioned according to law. The
estimated rates shall equal the tax rates for the current fiscal year;
2. if, subsequent to the fifth of June, the council shall, fix the tax
rates for the ensuing fiscal year at percentages differing from the
estimated rates, real estate tax payments shall nevertheless be payable
in accordance with paragraph one of this subdivision at the estimated
rates. However, in such event, prior to the first of January in such
fiscal year, the commissioner of finance shall cause the completed
assessment rolls to be revised to reflect the tax rates fixed by the
council, and an amended bill for the installment or installments for
such fiscal year due and payable on or after the first of January shall
be submitted to each taxpayer in which whatever adjustment may be
required as a result of the estimated bill previously submitted to the
taxpayer shall be reflected.
(t) Appropriation, certification and publication.
Not later than the day after the budget is finally adopted the budget
and the several amounts therein specified as appropriations or units of
appropriation shall be and become appropriated to the several purposes
therein named. The budget shall thereupon be filed in the offices of the
comptroller and the city clerk, and shall be published forthwith.
(u) Council completion of assessment rolls.
At such annual meeting to adopt the budget the council shall cause to
be set down in the assessment rolls, opposite to the several sums set
A. 10030 20
down as the valuation of real property, the respective sums, in dollars
and cents, to be paid as tax thereon, rejecting the fractions of a cent.
It shall also cause to be added and set down the aggregate valuations of
the real property, and shall transmit to the comptroller of the state by
mail a certificate of such aggregate valuation.
(v) Collection of real property tax.
1. Immediately upon the completion of the assessment rolls, the city
clerk shall produce the proper warrants authorizing and requiring the
commissioner to collect the several sums therein mentioned according to
law. Such warrants need be signed only by the speaker of the council and
countersigned by the city clerk. Immediately thereafter and on or
before the thirtieth of June, the assessment rolls of the city as
corrected according to law and finally completed, or a fair copy there-
of, shall be delivered by the speaker to the commissioner with the prop-
er warrants, so signed and counter signed, annexed thereto. At the same
time the speaker shall notify the comptroller of the amount of taxes in
each book of the assessment rolls so delivered.
2. The commissioner upon receiving the assessment rolls and warrants
shall immediately cause the assessment rolls and warrants to be filed
with the city clerk.
(w) Mayor's financial plan update: thirty days after budget adopted.
§ 6-05. Format of expense budget departmental estimates, preliminary
expense budget, and executive expense budget.
(a) The expense budget departmental estimates, the preliminary expense
budget, and the executive expense budget for each year shall consist of
proposed units of appropriation for personal service and proposed units
of appropriation for other than personal service for the ensuing fiscal
year.
(b) Each agency head, for the departmental estimates, and the mayor,
for the executive budget, shall submit:
1. a statement of the impact of the proposed units of appropriation on
the level of services to be provided during the ensuing fiscal year; and
2. for each community within the city as identified in the council's
hearings on local and neighborhood budget needs, a written response to
each of the expense budget priorities included in the committee's recom-
mendations of budget priorities submitted in accordance with provisions
of this charter, including the disposition of each such priority and a
meaningful explanation of any disapprovals contained in such estimates
or budget.
(c) Each proposed unit of appropriation shall represent the amount
requested for personal service or for other than personal service for a
particular program, purpose, or activity within an agency, department,
organization or institution; provided, however, that a single unit of
appropriation for personal service or a single unit of appropriation for
other than personal service may represent the amount requested for more
than one particular program, purpose, or activity for an agency, depart-
ment, organization or institution if the council has adopted, on the
recommendation of the mayor, or if the council has adopted on its own
initiative and the mayor has approved, a resolution setting forth the
names, and a statement of the programmatic objectives, of each program,
purpose, or activity for an agency, department, organization, or insti-
tution to be included in such a single unit of appropriation. Copies of
such resolutions must be included as an appendix to any preliminary
budget, executive budget, and adopted budget to which they apply. If,
in accordance with such a resolution, a proposed unit of appropriation
for other than personal service shall represent the total amount
A. 10030 21
requested for other than personal service for more than one proposed
unit of appropriation for personal service, the amount of such unit of
appropriation for other than personal service which is allocable to each
unit of appropriation for personal service shall be set forth for infor-
mational purposes at the end of each such unit of appropriation for
personal service. If, in accordance with such a resolution, a proposed
unit of appropriation for personal service shall represent the total
amount requested for personal service for more than one proposed unit of
appropriation for other than personal service, the amount of such unit
of appropriation for personal service which is allocable to each unit of
appropriation for other than personal service shall be set forth for
informational purposes at the end of each such unit of appropriation for
other than personal service.
(d) Each proposed unit of appropriation contained in the departmental
estimates, the preliminary expense budget and the executive expense
budget shall be accompanied by a statement of the programmatic objec-
tives of the program, purpose, activity for the agency, department,
organization or institution involved.
(e) Each proposed unit of appropriation contained in the departmental
estimates and the executive budget shall be supported by line items
showing how the total amount of such unit is determined.
(f) The departmental estimates shall be in such form and contain such
further information as may be required by the mayor or by law. Such
departmental estimates shall be public records and which shall at all
reasonable times be open to public inspection.
(g) For each city agency that has local service districts within
communities as defined by local law, where practicable, shall contain a
statement of proposed direct expenditures in meaningful categories of
information, in each such service district.
§ 6-06. Preliminary expense budget.
The preliminary expense budget shall contain proposed expenditures and
a forecast of revenues for the ensuing fiscal year, including, for each
tax revenue source which represents five percent or more of the total
forecast of tax revenues, a detailed statement of the methodology and
assumptions used to determine the forecast of revenues estimated to be
received from such source in sufficient detail to facilitate official
and public understanding of the manner in which such forecasts are made,
shall indicate proposed units of appropriations for personal service and
for other than personal service, shall include a financial plan covering
estimates of expenditures and revenues for the four ensuing fiscal years
in such years, shall include the departmental estimates of agency
expenditures for the ensuing fiscal year together with proposed sources
of revenue for each unit of appropriation specified therein and shall
present a plan to ensure balance between the expense and revenue budgets
during the ensuing fiscal year.
§ 6-07. Contents of the executive expense budget.
(a) There shall be included in the budget:
1. Units of appropriation, prepared according to this chapter, in such
amounts and upon such terms and conditions as may be determined by the
mayor. Such appropriations shall include:
(i) the amounts required by law to be appropriated to the several
sinking funds as certified by the comptroller;
(ii) the amount required to pay the interest and principal of city
obligations as certified by the comptroller;
(iii) an amount, as certified by the comptroller, equal to the average
of all expenditures during each of the five preceding fiscal years for
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the payment of the expense of the removal of snow and ice, exclusive of
salaries and wages of regular employees of the city except for overtime
work and for work on Sundays and holidays, and exclusive of the purchase
of equipment;
(iv) the several amounts which are payable from sources other than the
real estate tax levy, provided however that amounts appropriated pursu-
ant to chapter nine of this charter which are allocable to a particular
program, purpose, activity or institution, shall be included for infor-
mational purposes only;
(v) such other amounts as may be required by law;
(vi) such amounts as shall be determined in the manner provided in
this chapter to be necessary to pay the expenses of conducting the busi-
ness of the city for the ensuing fiscal year and for other lawful public
purposes; and
(vii) a reserve for unanticipated contingencies.
2. An identification of the proposed appropriations, being proposed by
agency and project type and, within project type, by personal service
and other than personal service, for the maintenance of all major
portions of the capital plant, as such terms are defined in section 6-16
of this chapter.
3. The terms and conditions under which appropriations shall be admin-
istered.
(b) All such units of appropriation and other amounts shall be set
forth without deduction of revenues from any source except as otherwise
provided by law.
(c) The budget message, which shall not be deemed a part of the budg-
et, shall include:
1. an explanation;
2. itemized information and supporting schedules;
3. recommendations for any changes in revenue sources and fiscal oper-
ations;
4. an itemized statement of the actual revenues and receipts and
accruals of the general fund and of all other revenue sources;
5. a listing of the sources and amounts of all revenues and other
monies of a nonrecurring nature;
6. a four-year financial plan, containing:
(i) for each agency, for all existing programs, forecasts of expendi-
tures for the ensuing fiscal year and the succeeding three fiscal years
at existing levels of service;
(ii) forecasts of revenue by source from existing sources of revenue
for the ensuing fiscal year and the succeeding three fiscal years; and
(iii) for each new or expanded program, an indication of when such
program is projected to be fully implemented and a forecast of the annu-
al recurring costs for such program or program expansion after it is
fully implemented;
7. for each agency, a comparison of the proposed appropriations for
the ensuing fiscal year;
8. an explanation of principal changes in performance goals and indi-
cators;
9. an itemized statement, covering the city's entire capital plant,
except for those portions of the capital plant which have been committed
to the care and control of the board of education;
10. a presentation of the maintenance activities proposed by the mayor
to be completed during the ensuing fiscal year;
11. a statement of any substantive changes in the methodology and
assumptions used to determine the revenue estimates;
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12. a statement of the implications for the orderly development of the
city; and
13. a certificate setting forth the maximum amount of debt and
reserves.
§ 6-08. Adoption of expense budget and memorandum of understanding.
Adoption of expense budget with regard to a memorandum of understand-
ing contained in the terms and conditions.
(a) The council may increase, decrease, add or omit any amount in the
expense budget as submitted by the mayor, or change any terms and condi-
tions of the amount in that category, as stipulated in this chapter; the
mayor may disapprove any increase or addition to the amounts in the
categories, or any change in any term and condition of the budget, as
stipulated in this chapter, the mayor's disapproval may be overridden by
a two-thirds vote of all of the members of the council. As part of these
procedures the final adopted budget shall have within its terms and
conditions a memorandum of understanding, the final format and/or the
actual character of which shall be determined jointly by the actions of
the council and mayor consistent with the provisions for adopting a
local law. Such memorandum of understanding may include the provisions
by which the executive may have to schedule the timing and amounts of
expenditure or delay of expenditure and in what ways those expenditures
may be scheduled or delayed and if agreed to through the normal
provisions of adopting the budget, the priority of re-scheduling and or
delaying those appropriated expenditures or any part thereof those units
of appropriations. These details of the memorandum of understanding are
not to preclude or substitute for normal budget modification procedures
as detailed below; they are intended to deal with those circumstances
not covered by budget modification and/or normal impoundment procedures
as detailed below.
(b) All spending for services shall be in accordance with the terms
and conditions of the expense budget as adopted; provided, however, that
during any fiscal year the mayor shall notify the council of any
proposed modification of such a term or condition, at least thirty days
before the intended effective date of the modification in the term or
condition. These provisions are not to affect, hinder or substitute for
the normal procedures regarding budget modification or impoundment as
stipulated elsewhere in this chapter.
§ 6-09. Appropriations for goods, services or construction.
Appropriations for the procurement of goods, services or construction
or the provision of services, utilities, or facilities by a department
responsible for general services for other agencies and institutions in
accordance with the authority of a department responsible for general
services under the provisions of this charter shall be made to a depart-
ment responsible for general services but shall be segregated under the
name of the agency or institution for which they are intended and shall
be considered and accounted for as appropriated for such agency or
institution. Nothing herein contained shall prevent the designation of
part of such appropriations as a general stores account or under other
appropriate designation to enable a department responsible for general
services to maintain a stock in anticipation of requirements or to
provide services, utilities or facilities for joint use by more than one
agency or institution.
§ 6-10. Expense budget administration.
(a) Except as otherwise provided by law, no unit of appropriation
shall be available for expenditure by any city agency until schedules
fixing positions and salaries and setting forth other expenses within
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the units of appropriation are established pursuant to the adopted budg-
et, the administration of which is subject to the provisions of this
chapter, the state civil service law, and other applicable law.
(b) The mayor shall establish and may modify for each agency:
1. quarterly spending allotments for each unit of appropriation and
2. aggregate position and salary limits for each unit of appropri-
ation, which shall be made available for public review upon adequate
notice. No agency shall expend any sum in excess of such quarterly
spending allotments, or exceed aggregate position and salary limits. The
mayor may set aside specified sums as necessary reserves which shall not
be included in the quarterly spending allotments until released by the
mayor. Each agency shall administer all monies appropriated or available
for programs and purposes of the agency in accordance with quarterly
allotment plans proposed by the agency and approved or modified by the
mayor. Each such plan shall set forth by units of appropriation for the
quarter of the fiscal year during which it is to remain in effect:
(i) rates of expenditures for personal services and other than
personal services;
(ii) ceilings on the total number of uniformed, civilian and pedagog-
ical employees; and
(iii) the total amount of funds to be spent or committed by the agency
during such quarter.
(c) The mayor shall keep informed during the course of each fiscal
year, of the progress of expenditures and the receipt of revenues, and
it shall be the duty of all agencies, when requested by the mayor, to
supply all information needed for this purpose.
(d) The mayor may assume direct responsibility for the administration
of the schedule required to be filed by the agency head pursuant to
subdivision (a) of this section when in the mayor's judgment the fiscal
condition of the city so requires or when an agency:
1. is expending funds in excess of the quarterly spending allotments;
2. is otherwise not complying with spending allotments or aggregate
position and salary limits; or
3. is not maintaining adequate accounts pursuant to requirements of
this charter.
(e) Whenever the mayor determines, pursuant to the provisions of this
charter or other relevant statutes, that the full amount of any appro-
priation should not be available for expenditure during the fiscal year,
the mayor shall notify the council of such determination and the impli-
cations and consequences of those impoundments for service levels and
programmatic goals affected. The mayor shall respond in writing to a
request by the council for an explanation of why an appropriation should
not be expended.
(f) The head of each agency shall establish the procedure by which
charges and liabilities may be incurred on behalf of the agency. Such
procedures shall ensure that no officer or employee, on behalf of or in
the name of the agency, shall incur a liability or an expense for any
purpose in excess of the amount appropriated or otherwise authorized
therefor, and no charge, claim or liability shall exist or arise against
the city for any sum in excess of the amount appropriated or otherwise
authorized for the particular purpose.
§ 6-11. Budget modification.
(a) Subject to the quarterly spending allotments and aggregate posi-
tion and salary limits established pursuant to applicable provisions of
this charter, of the state civil service law and of other law, changes
in schedules, within units of appropriation, may be made by the head of
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each agency. Any such changes shall be reported to the mayor and the
comptroller not more than ten days after the effective date thereof, and
shall be made available for public review upon adequate notice.
(b) The mayor during any fiscal year may transfer part or all of any
unit of appropriation to another unit of appropriation, except that when
any such transfer:
1. shall be from one agency to another; or
2. shall result in any unit of appropriation having been increased or
decreased by more than five per centum or fifty thousand dollars, which-
ever is greater, from the budget as adopted for such unit of appropri-
ation, the mayor shall notify the council of the proposed action. Within
thirty days after the first stated meeting of the council following the
receipt of such notice, the council may disapprove the proposed action.
Written notice of any transfer pursuant to this subdivision shall be
given to the comptroller and shall be published as soon as possible
after such transfer.
(c) The provisions of this section shall not be deemed to authorize
any transfer from appropriations required by law.
(d) The council may during any fiscal year transfer part or all of any
unit of appropriation within the council appropriation to any other
council unit of appropriation for any of its programs or projects or for
any other purpose, solely by adoption of a council resolution. Each such
transfer shall be published and written notice thereof shall be given to
the mayor and to the comptroller not less than ten days before the
effective date thereof.
(e) The procedures and required approvals pursuant to the amendment,
adoption of the budget, veto of the mayor and appropriation, certif-
ication and publication of the budget, without regard to the dates spec-
ified therein, shall be followed in the case of:
1. any proposed amendment to the budget respecting the creation of new
units of appropriation,
2. the appropriation of new revenues from any source except for reven-
ues from federal, state or private sources in regard to the use of which
the city has no discretion provided, however, that the mayor shall give
notice to the council of the receipt and proposed utilization of any
such revenues, or
3. the proposed use by the city of previously unappropriated funds
received from any source. Any request by the mayor respecting an amend-
ment to the budget that involves an increase in the budget shall be
accompanied by a statement of the source of current revenues or other
identifiable and currently available funds required for the payment of
such additional amounts.
§ 6-12. Quarterly account of council budget.
The council shall be required to publish quarterly accounting of its
actual and planned expenditures, in sufficient detail to indicate the
positions and their purposes which have been funded, as well as the
activities and categories of materials and supplies purchased.
§ 6-13. General fund.
All revenues of the city, of every administration, department, board,
office and commission thereof, and of every other division of government
within the city, from whatsoever source except taxes on real estate, not
required by law to be paid into any other fund or account shall be paid
into a fund to be termed the "general fund."
§ 6-14. Expenditure reports.
Any public or private agency, authority, corporation, board or commis-
sion which receives city funds and is not otherwise subject to the
A. 10030 26
requirements of section 6-10 of this chapter shall submit quarterly
reports of the expenditure of such funds to the mayor in such form and
detail as the mayor may prescribe.
§ 6-15. Self-dealing among members of the governing boards of charita-
ble institutions.
(a) Any charitable institution which receives any payment from the
city of Staten Island charitable institutions budget shall pass and
implement by-laws which will:
1. require disclosure to the agency responsible for the administration
of charitable institutions budget and approval by such agency of the
material terms of any contract or transaction, direct or indirect,
between an institution and any member of its governing board, any part-
nership of which he or she is a member or any corporation in which he or
she holds ten per centum or more of the outstanding common stock;
2. preclude any member of the governing board of any institution from
sharing, participating or benefiting, directly or indirectly, in the
proceeds from any contract or transaction entered into between the
institution and any third party unless such participation or benefit has
been approved in advance by the agency and the governing board of the
institution has approved the transaction by a two-thirds majority
excluding the vote of member to be benefitted;
3. require each member of its governing board to submit to the agency
each year a disclosure statement including such member's name, home
address, principal occupation and business interests from which such
member or such member's spouse received income equal to or greater than
ten percent of their aggregate gross income during the previous year.
(b) At the discretion of the agency, any payment or any portion of any
payment may be withheld from any institution which has failed to pass
and implement such by-laws.
§ 6-16. Definitions of capital projects and budget terms.
As used in this charter:
(a) The term "capital project" shall mean:
1. a project which provides for the construction, reconstruction,
acquisition or installation of a physical public betterment or improve-
ment which would be classified as a capital asset under generally
accepted accounting principles for municipalities or any preliminary
studies and surveys relative thereto or any underwriting or other costs
incurred in connection with the financing thereof;
2. the acquisition of property of a permanent nature including wharf
property;
3. the acquisition of any furnishings, machinery, apparatus or equip-
ment for any public betterment or improvement when such betterment or
improvement is first constructed or acquired;
4. any public betterment involving either a physical improvement or
the acquisition of real property for a physical improvement consisting
in, including or affecting:
(i) streets and parks;
(ii) bridges and tunnels;
(iii) receiving basins, inlets and sewers, including intercepting
sewers, plants or structures for the treatment, disposal or filtration
of sewage, including grit chambers, sewer tunnels and all necessary
accessories thereof;
(iv) the fencing of vacant lots and the filling of sunken lots;
(v) any other project allowed to be financed by the local finance law,
with the approval of the mayor and the comptroller; or
(vi) any combination of the above.
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(b) The term "pending" shall mean not yet completed.
(c) The term "standards" for each category of capital projects to
which they apply shall include: maximum gross and net areas allowed;
types of programs which may be operated in the facility; performance
requirements for environmental systems; allowable materials and
finishes; maximum areas allowed for different functions and activities;
approximate cost limits per square foot of construction; and such other
items designated by the mayor or by resolution of the council.
(d) The term "scope of project" or "proposed scope of project" shall
mean a description of a capital project included in the capital budget
that contains specific guidelines for the design and implementation of
such project consistent with the standards for the appropriate category
of capital projects and includes each of the following items of informa-
tion which are relevant to the capital project involved:
1. purposes and public to be served;
2. programs to be conducted in the facility;
3. gross and net amounts of space and bulk for any building or struc-
ture and for areas for different functions and activities;
4. identification of required architectural, engineering or other
consultants and estimated fees for such consultants;
5. estimated completion dates for scope, design and construction;
6. total estimated project costs, including costs for site acquisi-
tion, preparation and tenant relocation, design, construction and equip-
ment;
7. estimated expenditures for the project for each fiscal year until
its completion;
8. estimated annual costs to operate programs within the facility when
fully staffed and to maintain the facility; and
9. such other information as shall be required by the mayor or by
resolution of the council.
(e) The term "cost" shall include the contract liabilities and expend-
iture incurred for work in carrying out the physical improvement and
interest thereon, and the compensation to be made to the owner of any
real property acquired for the improvement as determined by a court or
by agreement, and interest thereon.
(f) The term "expenses" shall mean any expenses incurred in relation
to an assessable improvement exclusive of cost and of damages assessed
by the board of assessors.
(g) The term "street," as used in this chapter, shall include street,
avenue, road, alley, lane, highway, boulevard, concourse, parkway,
driveway, culvert, sidewalk, crosswalk, boardwalk, and viaduct, and
every class of public road, square and place, except marginal streets.
(h) The term "real property" shall include all lands and improvements,
lands under water, waterfront property, the water of any lake, pond or
stream, all easements and hereditament, corporeal or incorporeal, and
every estate, interest and right, legal or equitable, in lands or water,
and right, interest, privilege, easement and franchise relating to the
same, including terms for years and liens by way of judgment, mortgage
or otherwise.
(i) The terms "maintenance" or "maintain" shall denote those activ-
ities necessary to keep the relevant portion of the capital plant in
good repair so as to preserve its structural integrity and to prevent
its deterioration.
(j) The term "major portion of the capital plant" shall mean:
1. any capital asset
A. 10030 28
(i) which is a capital facility or system comprising a component of
the public domain or infrastructure general fixed assets of the city or
a building comprising a component of the general fixed assets of the
city; and
(ii) which, as of the effective date of this charter, or, as a result
of any reconstruction or expansion after such date, has a replacement
cost of at least ten million dollars and a useful life of at least ten
years, or if purchased or constructed after such date has an original
cost of at least ten million dollars and an original useful life of at
least ten years; and
2. any other capital asset of the city designated by the mayor for the
purposes of this section; provided, however, that it shall not include
any asset which is leased to or otherwise under the cognizance and
control of a public benefit corporation or which is otherwise covered,
pursuant to state law, by requirements which are substantially similar
to the requirements of this section.
§ 6-17. Format of departmental estimates for capital projects, prelim-
inary capital budget and executive capital budget.
The departmental estimates for capital projects and the executive
capital budget shall consist of a detailed estimate of all capital
projects pending or which the agency head, for departmental estimates,
or the mayor, for the executive budget, believes should be undertaken
within the ensuing fiscal year and the three succeeding fiscal years.
Each agency head, and the mayor, for the executive budgets, shall submit
a written response to each of the capital budget priorities included in
the council's recommendation of budget priorities for local and neigh-
borhood needs submitted in accordance with the section on preliminary
budget hearings of this chapter. Such responses shall include the
response of the agency head and the mayor, as appropriate, regarding the
disposition of each such priority and meaningful explanations of any
disapprovals contained in such estimates or budget.
§ 6-18. Preliminary capital budget.
The preliminary capital budget statements shall consist of:
(a) a financial plan covering estimates of capital expenditures for
the four ensuing fiscal years;
(b) departmental estimates for capital projects as provided in section
6-19 of this chapter together with the cash flow requirements and
proposed sources of funding for each project included in such estimates;
(c) a capital program status report which sets forth the appropri-
ations for each project included in the capital budget for the current
fiscal year together with the expenditures to date; and
(d) a summary description of the purpose of each capital project and
the needs it will fulfill, the schedule for beginning and constructing
the project, its period of probable usefulness and an appropriate main-
tenance schedule.
§ 6-19. Executive capital budget.
(a) The executive capital budget shall set forth separately each capi-
tal project, and shall include:
1. a brief description and the location of each project; the total
estimated cost of the project; the appropriations which have been previ-
ously adopted for this project; the amount of appropriations recommended
to be adopted for the ensuing fiscal year the aggregate amount of which
shall not exceed the amount in the mayor's certificate; the amount of
appropriations required thereafter to complete the project; the sources
of funds for the project including state, federal, private and other
funds; the period of probable usefulness; the estimated additional annu-
A. 10030 29
al maintenance and operation costs; and any terms and conditions of the
project; the estimated dates of completion of final scope, final design
and final construction; and
2. a listing of all pending projects; and any recommendations that any
pending projects be modified, rescinded or postponed accompanied by a
statement of the budgetary impact of any such action.
(b) The executive capital program shall set forth for both program
categories and individual projects:
1. a statement for each of the three succeeding fiscal years of the
total dollar amounts necessary to complete projects initiated in prior
years and projects proposed in the executive budget the amounts neces-
sary for projects proposed to be initiated in future years and the
amounts necessary for amendments and contingencies; and
2. a statement of the likely impact on the expense budget of staffing,
maintaining and operating the capital projects included in or contem-
plated by the capital program.
§ 6-20. Amendment.
(a) Upon receipt of a recommendation in writing from the mayor in
manner specified herein, the council may amend the capital budget or
capital program in the same manner as the adoption of the capital budget
and capital program including the right to approve the proposed amend-
ment as submitted or to increase or decrease the amounts of funds
proposed to be appropriated thereby, but only if funds are available
within the capital budget and the applicable program category of the
capital program, provided, however that the mayor may only recommend
such an amendment relating to an appropriation included in the capital
budget pursuant to this charter.
(b) Upon the adoption of any such amendment by the council, it shall
be certified by the mayor, the speaker of the council and the city clerk
and the capital budget shall be amended accordingly.
(c) Not later than five days after such certification such amendment
shall be filed in the office of the comptroller and shall be published
forthwith.
§ 6-21. Restrictions on capital projects.
(a) No obligations of the city shall be issued or authorized for or on
account of any capital project not included in a capital budget, or for
which funds have not been reserved in an appropriate program category of
the capital program for any year of such program in which it is project-
ed that funds will be expended for the completion of the project, or in
excess of the maximum amount of obligations which may be issued on
account of such project as fixed in such capital budget; and no amount
may be expended on account of any capital project in excess of the
amount appropriated for such purposes in a capital budget, except that
the amount appropriated for such purposes may be increased by the mayor
by not more than fifteen per centum thereof in order to meet any costs
required to advance such project. Notice of any such increase shall be
provided to the council together with a statement of identifiable funds
available for payment of the increase.
(b) Funds included in the capital budget for a capital project that
are not obligated or committed during the fiscal year in which appropri-
ated shall not be obligated or committed in the subsequent fiscal year
unless reappropriated in a subsequent capital budget or an amendment
thereto. A capital project included in a capital budget that is not
initiated by the expenditure of funds within two years after its inclu-
sion in the budget shall be eliminated from the budget.
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(c) The city may issue capital debt only to finance capital projects
as defined in this charter. The capital budget may not include expense
items that are properly includable only in the expense budget, as deter-
mined in accordance with the accounting principles set forth in the
state comptroller's uniform system of accounts for municipalities, as
the same may be modified by the state comptroller, in consultation with
the city comptroller, for application to the city.
(d) No capital project shall be included in the proposed executive
capital budget or otherwise adopted as part of the capital budget or as
an amendment thereto unless sufficient funds are available within the
appropriate general program category of the capital program for any year
of such program in which it is projected that additional appropriations
will be necessary for the completion of the project.
§ 6-22. Site selection.
(a) The selection of sites for capital projects shall be pursuant to
local law.
(b) To the maximum extent feasible, final approval of a site for a
capital project shall occur prior to or simultaneously with the approval
of the scope of the project pursuant to this chapter.
§ 6-23. Project initiation; commitment plan.
(a) The inclusion of a capital project in the capital budget as
adopted or amended shall constitute a direction and order to the agency
to proceed with the preparation of a scope of project pursuant to this
chapter unless sufficient planning funds for such purpose have not been
appropriated in the capital budget. The head of the agency shall notify
the comptroller of the amount of appropriated planning funds to be
encumbered for such purpose.
(b) The approval of a scope of project for a capital project pursuant
to this chapter, including the amount of obligations necessary to
finance the design and construction of the project, shall constitute a
direction and order to the agency to design the project, unless suffi-
cient funds for such purpose have not been appropriated in the capital
budget or are otherwise not available within the appropriate program
category of the capital program. Such approval shall constitute notifi-
cation to the comptroller of the comptroller's authorization to expend
appropriated design funds.
(c) The approval of the final design for a capital project pursuant to
this chapter shall constitute a direction and order to the agency
responsible for construction to prepare bid and award documents and to
proceed to bid, unless sufficient funds for such purpose have not been
appropriated in the capital budget or are otherwise not available within
each year of the capital program in which it is projected that funds
will be expended for the completion of the project. Such approval shall
constitute notification to the comptroller of the comptroller's authori-
zation to expend appropriated construction funds.
(d) The mayor shall require each agency to prepare and submit periodic
reports, in regard to the progress of its capital projects, including
schedules and clear explanations of any delays for particular projects
and summary information on each agency's record on such matters. Such
reports shall be published at least three times each year: within ninety
days of the adoption of the capital budget; with the preliminary capital
budget; and with the executive capital budget, copies of such reports
shall be transmitted by the mayor to the council. Such reports shall
include, for each project, the dates set in the adopted capital budget
for the completion of scope, design, and construction and any changes in
such dates.
A. 10030 31
1. The report issued with the executive budget shall include, for each
new capital project being proposed in the executive budget, a
description of the project including, to the extent practicable, the
information required to be included in a scope of project.
2. The report issued following the adoption of the budget shall
include, for each capital project added to the budget, a description of
the project including, to the extent practicable, the information
required to be included in a scope of project.
3. The report issued following the adoption of the budget shall
include, for each capital project for which a substantial change was
made, a revised description of the project including, to the extent
practicable, the information required to be included in a scope of
project.
(e) Any capital project which results in the acquisition or
construction of a capital asset which will be subject to the require-
ments of this charter shall contain a provision requiring a comprehen-
sive manual setting forth the useful life of the asset and explaining
the activities necessary to maintain the asset throughout such useful
life.
(f) The mayor may issue directives and adopt rules and regulations in
regard to the execution of capital projects, consistent with the
requirements of subdivisions (a), (b), (c) and (d) of this section,
which shall be binding upon all agencies.
§ 6-24. Improvements payable other than by city.
Any owner of real property or any other person interested may apply to
the council to authorize an improvement referred to in paragraph one of
subdivision (a) of section 6-16 of this chapter, not included in the
capital budget. The council may authorize such improvement to be made by
the city or by such owner or other person interested upon compliance
with the following conditions:
(a) such owner or group or other persons interested shall enter into
an agreement with the city, whereby they will either authorize the city,
or themselves agree, to perform such work in accordance with such plans
and specifications approved by the agencies having jurisdiction there-
over and under their supervision;
(b) all of such work shall be done for the account of or at the sole
cost and expense of the person or persons applying for permission to do
the same, who shall furnish to the city such security and in such amount
as may be required to secure the payment of such cost and expense or the
proper performance of the said work in the time and in the manner agreed
upon, and shall further secure the city, in the latter case, against
latent defects in such work for a period of two years;
(c) such improvement shall be approved by the city planning department
and reviewed pursuant to local law and charter provisions; and
(d) any agreement providing for the performance of such work and the
furnishing of such security, shall be first approved by the council
before the same shall become effective.
§ 6-25. Standards for capital projects.
The mayor shall prepare general standards and cost limits for catego-
ries of capital projects and standards for the preparation of the scope
of project for capital projects of various types. Such standards and
limits shall be submitted by the mayor to the council for review. The
proposed standards shall become effective thirty days after they have
been filed with the council unless within that time the council modifies
or disapproves them or part of them, after conducting a public hearing.
Any modification by the council shall be subject to disapproval by the
A. 10030 32
mayor in accordance with provisions of this charter and any such disap-
proval shall be subject to override by the council in accordance with
this charter.
§ 6-26. Scope of project.
(a) Each agency, with respect to a capital project under its jurisdic-
tion included in a capital budget, shall prepare a proposed scope of
project within appropriated planning funds. The proposed scope of
project, or, in the case of a delay, an explanation for such delay along
with a revised schedule, shall be submitted to the mayor and the coun-
cil, by the date specified in the adopted capital budget in which the
capital project is included. Such proposed scope shall identify all
substantial differences between the guidelines for the capital project
as contained in such scope and the description of the capital project
contained in the report issued pursuant to this charter at the time such
project was proposed in the executive budget or following the budget
adoption in which such project was added to the capital budget.
(b) Not later than sixty days after receipt of the proposed scope of
project from an agency pursuant to subdivision (a) of this section, the
mayor shall approve, modify, or disapprove the proposed scope of project
and notify the agency and the council. In the case of a scope approved
by the mayor with modifications, such notification shall include a copy
of the scope as approved.
(c) No scope of project shall be approved by the mayor unless:
1. it contains the information required by paragraph four of subdivi-
sion (d) of section 6-16 of this chapter and it conforms to the applica-
ble standards for the type of project adopted pursuant to this chapter,
and
2. funds are available within the appropriate program category of the
capital program that can be reserved for each fiscal year required to
complete the project.
§ 6-27. Design of capital project.
(a) The proposed design and final design for a capital project shall
be made available for review by the council. The mayor or the mayor's
representative shall review the final design to determine its conform-
ance with the approved scope of project pursuant to this chapter.
(b) Works of art may be provided for each capital project which
involves the construction or the substantial reconstruction of a city-
owned public building or structure the intended use of which requires
that it be accessible to the public generally or to members of the
public participating in, requiring or receiving programs, services or
benefits provided thereat. For the purposes of this section a police
precinct house and a firehouse shall be deemed to be such buildings.
Chapter 7
Planning Department
§ 7-01. Planning department.
There shall be a department of city planning consisting of a planning
director and such subordinate employees as are required to administer
the planning program described herein.
§ 7-02. Planning director.
The mayor shall appoint and shall have the power to remove the plan-
ning director, who shall have had at least five years of appropriate
professional land use experience. The planning director shall be the
head of the planning department, and shall be responsible for the proper
conduct of the affairs of the department and for the execution of the
A. 10030 33
planning program prescribed in this charter and in local laws and rules
consistent herewith.
§ 7-03. Powers, duties and functions.
(a) The planning director, through the planning department, shall:
1. advise and assist the mayor and the council in regard to the phys-
ical planning and public improvement aspects of the development of the
city and on all matters related to the planning program prescribed in
this charter and in local law and rules consistent herewith;
2. prepare the general plan and revisions thereof, and development
plans at least every four years in the year following the mayoral
election and annual reviews thereof, for the improvement and development
of the city;
3. establish procedures for processing revisions to the general plan
and to the four-year and one-year development plans;
4. hold public hearings on such plans and revisions thereof and trans-
mit them, with findings and recommendations thereon, through the mayor
to the council for its consideration and action;
5. prepare zoning resolutions, maps and rules and regulations and any
revision or amendments thereto in accordance with the general plan;
6. prepare local laws or resolutions and rules and regulations govern-
ing the subdivision of lands within the city and any revisions or amend-
ments thereto;
7. administer the zoning and subdivision local laws or resolutions and
rules and regulations adopted thereunder and any regulatory laws or
resolutions which may be adopted to supplement or replace such resol-
utions;
8. recommend periodic amendments to zoning resolutions and subdivision
laws or regulations, and provide opportunity for taxpayers to recommend
periodic amendments to zoning resolutions and subdivision laws or regu-
lations;
9. hold public hearings on land subdivision and zoning resolutions and
amendments thereto, transmit such proposed resolutions, with findings
and recommendations thereon, through the mayor to the council for its
consideration and action;
10. establish procedures for the review of land utilization applica-
tions;
11. review subdivision plats and zoning petitions;
12. approve applications for special permits and variances within the
jurisdiction of the department of city planning under the zoning resol-
ution;
13. collect data on population, housing and other relevant social and
economic indicators to serve as a basis for planning recommendations;
and may conduct continuous studies and policy analyses on economic
development, urban design, capital improvements, environmental impact
assessment and such other subjects as the mayor or council may from time
to time request;
14. be custodian of the city map and thereon record all changes legal-
ly authorized;
15. administer the program prescribed by law with respect to the
establishment and regulation of landmarks, portions of landmarks, land-
mark sites, interior landmarks, scenic landmarks and historic districts;
16. hold public hearings on a proposed designation of a landmark,
landmark site, interior landmark, scenic landmark or historic district,
after notice of the proposed designation, notice of the hearing, and an
opportunity for comment to the affected property owner or owners;
A. 10030 34
17. submit to the council a report on the impact of any such desig-
nation whether of a district or a landmark to the zoning resolution,
projected public improvements, and any plans for the development,
growth, improvement or renewal of the area involved, and a recommenda-
tion for council action with respect to any such designation;
18. review the executive capital program and budget for conformance to
the purposes of the general plan and development plans prior to
submission of the executive capital program and budget to the council
and make a written report of his or her findings to the mayor and coun-
cil at the time of submission of such executive capital program and
budget;
19. prepare, in consultation with the director of the budget, the
draft ten-year capital strategy, and hold hearings on such draft, and
report his or her findings to the mayor and to the council;
20. consult with the appropriate State officials concerned with plan-
ning and environmental quality to assure compliance with State guide-
lines and oversee implementation of laws that require environmental
reviews of actions taken by the city; and
21. perform such other functions as are assigned by the mayor or other
provisions of law.
§ 7-04. General plan.
The general plan shall set forth the city's broad policies for the
long range development of the city. It shall contain statements of the
general social, economic, environmental and design objectives to be
achieved for the general welfare and prosperity of the people of the
city through government action, city, state or federal. The statements
shall include, but not be limited to, policy and development objectives
to be achieved with respect to the distribution of social benefits, the
most desirable uses of land within the city, the overall circulation
pattern and the most desirable population densities within the several
areas of the city. In conformance with such development objectives and
policies the plan shall identify the general location, character, and
extent of streets and thoroughfares, parks, recreation facilities, sites
for public buildings and structures, city and privately owned utilities,
transportation systems and facilities, housing, community facilities,
future land use for all classifications and such other elements,
features and policies as will provide for the improvement of the city
over the next ten years.
§ 7-05. Development plans.
Development plans shall present detailed means for implementing and
accomplishing the development objectives and policies of the general
plan within the several parts of the city. The mayor shall have a
comprehensive four-year development plan which shall recommend a gener-
alized land use development pattern to guide the growth of the city over
the succeeding four-year period and a one-year development plan that
delineates the city's proposed land use development pattern for a
succeeding twelve month period and is based upon the development goals
and objectives specified in the city's four-year development plan.
§ 7-06. Adoption of the general plan and development plans.
(a) The mayor shall submit annually to the council such plans that
will include a general plan, four-year and one-year development plans
for all property within the city limits. The council shall adopt the
general plan or revisions thereof and development plans or amendments
thereto by local law. Any local law or resolution adopting or revising
the general plan shall be laid over for at least two weeks after intro-
duction. The mayor shall not certify as to the necessity for the immedi-
A. 10030 35
ate consideration of any general plan, development plans, or revisions
or amendments thereto. Public notice shall be provided at least ten days
before adoption by the council. Upon adoption, every local law or
resolution shall be presented to the mayor, and the mayor may approve or
disapprove it pursuant to applicable provisions governing the approval
or disapproval of a local law or resolution. If the mayor approves the
local law, the mayor shall sign it and return it to the clerk; it shall
then be deemed to have been adopted. If the mayor disapproves it, he or
she shall return it to the council with his or her objections stated in
writing. The council at its next regular meeting may reconsider the same
and if the votes of two-thirds of all the council members be cast in
favor of repassing such local law, it shall be deemed adopted, notwith-
standing the objections of the mayor.
(b) The general plan and all development plans shall be kept on file
in the department of city planning.
(c) The approved general plan and development plans shall be used as a
guide for the preparation of the city's capital improvement program and
capital budget.
(d) The mayor shall maintain an up-to-date zoning map of all proper-
ties within the city limits.
(e) Following the annual updating and adoption of the city's develop-
ment plans, the council shall amend the city's zoning ordinance to
conform it to the updated development plans in accordance with proce-
dures prescribed by general law.
§ 7-07. Board of Appeals.
(a) There shall be a board of appeals which shall consist of five
members to be termed commissioners, three of whom shall be appointed by
the mayor and two appointed by the council. Members shall serve a stag-
gered term of five years.
(b) Commissioners shall be chosen for their independence, integrity
and civic commitment and for their professional competence in such areas
as planning, architecture, and engineering. The mayor shall designate
one of the members to serve as chair and one of the members to serve as
vice-chair who shall act as chair in the absence of the chair or in the
event that a vacancy exists in the office of chair.
(c) Every member of the board shall receive a salary, which shall not
be reduced during his or her term of office except in case of a general
reduction of salaries and in proportion to reductions of salaries of
other officers with similar salaries. A member shall not engage in any
other occupation, profession or employment. Members shall attend the
hearings and executive sessions of the board, and shall perform such
other duties as may be required by the chair.
(d) Vacancies shall be filled in the same manner as for an original
appointment for the unexpired term of the member whose place has become
vacant and with a person having his or her qualifications.
(e) Any member may be removed by the mayor on proof of official
misconduct, or of negligence in official duties, inability to perform
his or her duties; but before removal he or she shall receive a copy of
the charges and shall be entitled to a hearing before the mayor and to
the assistance of counsel at such hearing.
§ 7-08. Meetings.
Meetings of the board shall be held at the call of the chair and at
such other times as the board may determine. The chair, or in his or her
absence the acting chair, may administer oaths and compel the attendance
of witnesses. All hearings before the board shall be open to the public
and shall be before at least three members of the board, and a concur-
A. 10030 36
ring vote of at least three members shall be necessary to a decision to
grant an application or an appeal, to revoke or modify a variance,
special permit or other decision of the board, or to make, amend or
repeal a rule or regulation. The board shall keep minutes of its
proceedings, showing the vote of each member upon every question, or if
absent or failing to vote, indicating such fact, and shall also keep
records of its examinations and other official action. Such minutes and
such records shall be public records.
§ 7-09. Powers and duties.
The board shall have the power:
(a) to hear and determine appeals from the actions of the planning
director in the administration of the zoning and subdivision resolutions
and any rules and regulations adopted pursuant thereto, which appeal
shall be sustained only if the board finds that the director's action
was based on an erroneous finding of a material fact, or that the direc-
tor had acted in an arbitrary or capricious manner or had manifestly
abused discretion;
(b) to hear and determine appeals from the actions of the planning
director on petitions for varying the application of the zoning resol-
ution with respect to a specific parcel of land and may grant such a
variance upon the ground of unnecessary hardship if the record shows
that:
1. the applicant would be deprived of the reasonable use of such land
or building if it were used only for the purpose allowed in that zone;
2. the request of the applicant is due to unique circumstances and not
the general conditions in the neighborhood, so that the reasonableness
of the neighborhood zoning is not drawn into question; and
3. the use sought to be authorized by the variance will not alter the
essential character of the locality, provided however that the board
shall specify the particular evidence which supports the granting of a
variance;
(c) to hear and determine appeals from and review any recommendation
by the planning director to designate a landmark, landmark site, interi-
or landmark, scenic landmark or historic district;
(d) to make, amend and repeal rules and regulations for carrying into
effect the provisions of the laws, resolutions, rules and regulations in
respect to any subject-matter jurisdiction whereof is conferred by law
upon the board, and to include in such rules and regulations provisions
applying to specific conditions and prescribing means and methods of
practice to effectuate such provisions and for carrying into effect the
powers of the board;
(e) to review, upon motion of any member of the board, any rule, regu-
lation, amendment or repeal thereof, and any order, requirement, deci-
sion or determination from which an appeal may be taken to the board
under the provisions of this chapter or of any law, or of any rule,
regulation or decision of the board; but no such review shall prejudice
the rights of any person who has in good faith acted thereon before it
is reversed or modified; and
(f) to revoke or modify, upon due notice and hearing, variances and
special permits previously granted under the zoning resolution if the
terms and conditions of such grants have been violated.
§ 7-10. Procedure on appeals.
(a) An appeal may be taken by an aggrieved party.
(b) Such appeal may be taken within such time as shall be prescribed
by the board by general rule, by filing with the officer from whom the
appeal is taken and with the board a notice of appeal, specifying the
A. 10030 37
grounds thereof. The officer from whom the appeal is taken shall forth-
with transmit to the board all the papers constituting the record upon
which the action appealed from was taken.
(c) The board shall fix a reasonable time for the hearing of appeals,
and give due notice thereof to the parties, and decide the same within a
reasonable time. If the appeal is from an order revoking a permit or
approval, the hearing shall be no later than at the third scheduled
hearing of the board following the date of filing of the appeal, or five
weeks following such date, whichever is sooner, and the decision of the
board shall be rendered expeditiously. Upon the hearing any party may
appear in person or by agent and/or attorney.
(d) Any decision of the board under this section may be reviewed as
provided by law.
Chapter 8
Franchises
§ 8-01. Franchises.
All franchises, revocable consents and concessions shall be awarded in
accordance with the following procedures:
(a) The council shall have the power to grant, renew or extend any
franchise, revocable consent or concession which extends for a period of
three or more years, provided, however, that any franchise, revocable
consent or concession which extends for a period of ten years or more
shall require the approval of two-thirds of all the members; and
(b) The mayor shall have the power to enter into an agreement to
grant, renew or extend a franchise, revocable consent or concession
which extends for a period of less than thirty-six months.
Chapter 9
Contracting
§ 9-01. Procurement.
Except as otherwise provided in this charter or by statute, all goods,
services or construction to be paid for out of the city treasury or out
of monies under the control of or assessed or collected by the city
shall be procured as prescribed in this chapter.
§ 9-02. Conditions.
The circumstances under which procurement may be used for the
provision of technical, consultant or personal services, shall include
circumstances where the use of procurement is:
(a) cost effective or necessary to obtain special expertise;
(b) necessary to provide a service not needed on a long-term basis;
(c) necessary to avoid a conflict of interest; or
(d) where personnel or expertise is not available in city government.
§ 9-03. Procedures.
All contracts shall be awarded in accordance with the following proce-
dures:
(a) The mayor as the chief elected executive shall through his or her
appointees have the power to enter into contracts on behalf of the city
of Staten Island.
(b) The comptroller shall, in accordance with provisions of this char-
ter and with practices promulgated by state law, certify all contracts,
within thirty days of receipt of such contract, provided there is no
cause not to certify. If the comptroller determines that a contract
cannot be certified, he or she shall so notify the mayor and the common
council within thirty days of receipt of such contract. Reasons not to
certify shall include but not be limited to debarment of
A. 10030 38
vendors/contractors, unreasonable and/or onerous terms and conditions,
financial problems or inconsistencies, and any other major cause not
advantageous to the city that the comptroller can identify and justify
through appropriate documentation.
(c) All contracts above ten thousand dollars, shall be let by compet-
itive bidding, in compliance with current rules, regulations, guidelines
and practices set forth by an appropriate national government procure-
ment officers professional association or the conventions set forth in
the generally accepted accounting practices or procedures as promulgated
by the New York State comptroller's office, as agreed to by the mayor,
the comptroller and approved by the common council; except that, when an
emergency as defined by local law is declared by the mayor to exist and
is certified by the comptroller, expedited rules as promulgated by the
mayor or the mayor's designee shall apply.
(d) Contracts of ten thousand dollars or less may be let by sole
source bid when an agency by rule determines that there is only one
source for the required good, service or construction. The agency
contract file shall contain a written determination that only one source
is available for the required good, service or construction, including
the process by which the agency made such determination. The agency
shall provide to the comptroller written documentation to support its
intention to let a sole source contract. This documentation shall
include, but not be limited to, the qualifications of the vendor and the
specific requirements of the contract.
(e) If, for any contract above ten thousand dollars, there is an
alteration, renewal, or change in the terms and conditions or the scope
of work which results in an increase or decrease of greater than five
per centum of the original contract amount, then those contract changes
must be certified by the comptroller.
§ 9-04. Notification of contract opportunities and awards.
Each agency shall publish in the appropriate publication and in news-
papers of city, state or national distribution and trade publications,
notice of:
(a) the solicitation of bids or proposals pursuant to this chapter
where the value of a contract for goods, services or construction is
estimated to be above ten thousand dollars;
(b) the award of a contract for goods, services or construction
exceeding ten thousand dollars in value. Each such notice of award shall
indicate the name of the contractor, the dollar value of the contract,
the procurement method by which the contract was let;
(c) the comptroller shall promulgate rules providing for the publica-
tion and content of notices of contract actions required by this chap-
ter. Such rules shall include but not be limited to provisions regarding
the timing and frequency of notices, the required duration of solicita-
tion periods, and the form and content of notices.
§ 9-05. Agency contract files.
Each agency shall maintain files containing all information pertaining
to the solicitation, award and management of each contract of the agen-
cy. The agency contract files shall contain copies of each determi-
nation, writing or filing required by this chapter pertaining to a
contract including the circumstances under which the procurement was let
in accordance with section 9-02 of this chapter, and copies of all costs
effectiveness analyses. Agency contract files shall be open to public
inspection with adequate protection for information which is confiden-
tial.
§ 9-06. Centralized contract and contractor information.
A. 10030 39
The mayor shall ensure that copies of all city contracts and other
standard information regarding city contracts and contractors are
located in a central place which is accessible to the public. Such
information shall include:
(a) a copy of the contract;
(b) information regarding the method by which the contract was let;
(c) such standard documents as the contractor is required to submit,
which shall be updated regularly;
(d) information regarding the contractor's qualifications and perform-
ance;
(e) any evaluations of the contractor and any contractor responses to
such evaluation;
(f) any audits of the contract and any contractor responses to such
audits;
(g) any decisions regarding the suspension or debarment of the
contractor; and
(h) any analysis and determination of cost effectiveness.
The mayor shall ensure adequate public access to the information on
contracts and contractors which shall be maintained in a manner to
facilitate public review, with due consideration for the need to
protect, where appropriate, the confidentiality of any such information.
§ 9-07. Adverse impact on public employees.
In the event that a proposed contract for goods, services or
construction may adversely affect public employees, the public employees
union, if any, shall be advised no later than three months in advance of
the contract being let of the nature, scope, and approximate dates, of
the contract, and the reasons therefor. Except that, when an emergency
as defined in subdivision (c) of section 9-03 of this chapter is in
effect, some or all of the provisions of this section may be omitted or
suspended for the period of the emergency, but only for those contracts
directly relevant to the management of that emergency or as a result of
the emergency.
The public employer will provide such union as soon as practicable,
with information, in sufficient detail, so that the union may prepare a
proposal designed to demonstrate the cost effectiveness of keeping the
work in-house. Such information shall include, but not be limited to,
applicable solicitation to vendors, winning bids, descriptions of
services to be provided by vendors, and the agency's estimated direct
operating and administrative costs of contracting out the work.
Not less than thirty days prior to the award of the contract, the
union shall have the opportunity to make a formal proposal to the public
employer demonstrating that it is cost effective or that it is in the
best interest of the public employer to continue to perform such work
in-house. The public employer shall consider such proposal before making
a final determination.
Chapter 10
Referendum and Amendment
§ 10-01. Referendum on pending legislation.
(a) The people of the city of Staten Island reserve to themselves the
right to require the council to vote on proposed laws and amendments to
the local laws as hereinafter provided.
(b) The people shall have the power to require the council to vote on
proposed bills and resolutions by initiative petition. Each initiative
petition shall support a bill or resolution which has been introduced in
A. 10030 40
the council and shall be signed by five per centum of the total votes
cast on Staten Island at the previous general election.
(c) An initiative petition when signed by the requisite number of
voters shall be submitted to the Staten Island board of elections which
shall promptly determine whether the petition meets the requirements of
subdivision (b) of this section. If the Staten Island board of elections
determines those requirements are satisfied it shall certify to the
speaker of the council that the bill or resolution supported by the
petition is required to be considered in the council with the vote of
each member present recorded.
(d) No petition shall be certified to the council after May first in
any year. A petition which is not certified by the Staten Island board
of elections before May first shall be certified to the council on the
first day of the next legislative session.
(e) The council shall have sixty days from receipt of a certified
petition to vote on the bill or resolution which is the subject of the
petition. If the council fails to vote on such bill or resolution within
sixty days, such bill or resolution shall be deemed to have passed.
(f) City funds, facilities or employees may not be used to solicit
signatures on an initiative petition or to support or oppose the signing
of such a petition provided, however, that elected officials may solicit
such signatures or oppose the signing of such a petition.
(g) The council shall, by local law, prescribe the form and content
of, and the procedures for, initiative petitions consistent with this
section. The council may, by local law, provide for the reporting of the
identity of any person who expends money to affect any initiative peti-
tion and the amount of any money so expended.
§ 10-02. Charter amendment.
(a) Amendments to this charter shall be adopted by referendum only,
except for those changes that are syntax and/or spelling changes which
may be effected, altered or amended by local law as adopted by the coun-
cil and the mayor as provided for in this charter. The council may
place an amendment on the ballot by a vote of two-thirds of all the
members.
(b) Referendum in order to amend the charter shall take place as a
ballot issue to be decided by affirmative vote of the majority of the
qualified electors of the city voting thereon, it shall take effect as
prescribed in such referendum.
(c) The referendum shall be placed on the ballot by petition of quali-
fied electors of not less than five per centum of the total vote cast in
the city of Staten Island at the last gubernatorial general election.
The petition shall be filed in the office of the clerk of the city of
Staten Island for the submission to the electors of the city at the next
general election therein held not less than sixty days after such
filing. The proposed amendment shall be set forth in full in such peti-
tion which may be made upon separate sheets and the signatures of each
shall be authenticated in the manner provided by the New York state
election law. If within ten days after the filing of such petition a
written objection thereto be filed with the office of the city clerk and
the board of elections, the Supreme Court or any justice thereof of the
appropriate judicial district shall determine any question arising ther-
eunder and make such order as justice may require as prescribed in the
state election law.
Chapter 11
Property of the City
A. 10030 41
§ 11-01. Inalienable property.
The rights of the city in and to its water front, ferries, wharf prop-
erty, bridges, land under water, public landings, wharves, docks,
streets, avenues, highways, parks, waters, waterways and all other
public places are hereby declared to be inalienable; but upon closing or
discontinuance of any street, avenue, park or other public place, the
property may be sold or otherwise disposed of as may be provided by law,
and leases of land under water, wharf property, wharves, docks and piers
may be made as may be provided by law.
§ 11-02. Authority to acquire real property.
(a) The city may acquire title in fee to real property or any interest
therein whenever required for any public or municipal use or purpose or
for the promotion of public utility, comfort, health, enjoyment or
adornment. Such title or interest shall be acquired according to law by
purchase, gift, devise, lease, condemnation or otherwise, and, subject
to the provisions of this charter or other law may sell, lease, mort-
gage, hold, manage, and control such property as may now or hereafter be
owned by it.
(b) The council by local law shall prescribe the procedures for all
acquisitions of real and personal property by the city, including proce-
dures for determining compensation and for appealing from such determi-
nation without prejudice to the appellant. In addition to all other
requirements of law, written notice of the application to have compen-
sation for real property ascertained in any proceeding brought by the
city to acquire title to real property shall be given to the owners of
all property affected by the proceeding to such application. Such notice
shall state the purpose for which the property is to be acquired and the
date when such application will be presented and shall be made public
not less than ten days prior to such proceeding. Any owner whose proper-
ty has been taken in any such proceeding which has not been used for the
purpose stated in the proceeding for acquisition shall have the right of
first refusal to repurchase such property from the city after the expi-
ration of a five-year period from the date of the entry of the final
decree in the proceeding for the price paid plus simple interest.
§ 11-03. Disposal of property of the city.
No real property of the city may be sold, leased, exchanged or other-
wise disposed of except as specifically provided by law.
Chapter 12
Personnel Management
§ 12-01. Declaration of intent.
(a) The personnel policies and practices of the city government in
furtherance of this charter, the state civil service law and rules and
other applicable law shall:
1. preserve and promote merit and fitness in city employment;
2. ensure that appointments and promotions in city service are made,
and that wages are set, without regard to political affiliation, and
without unlawful discrimination based on sex, race, color, religion,
religious observance, national origin, disability, age, marital status,
citizenship status or sexual orientation; and promote and support the
efficient and effective delivery of services to the public.
(b) Consistent with subdivision (a) of this section, the heads of city
agencies shall have such powers, duties and responsibilities for person-
nel management as they shall require to administer their agencies effec-
tively and to supervise, evaluate, motivate, discipline, provide incen-
tives for and improve the skills of employees of the city.
A. 10030 42
§ 12-02. Department; personnel director.
There shall be a department of personnel, the head of which shall be
the personnel director. The personnel director shall have all the powers
and duties of a municipal civil service commission provided in the state
civil service law or in any other statute or local law other than such
powers and duties as are by this chapter assigned to the mayor, the city
civil service commission or the heads of city agencies.
§ 12-03. City civil service commission.
(a) There shall be a city civil service commission, consisting of
three members, not more than two of whom shall be members of the same
political party. Members shall be appointed by the mayor, from a list of
nominations provided by the screening committee established pursuant to
subdivision (b) of this section, for overlapping terms of six years. Of
the members first appointed, one shall serve for two years and one for
four years and one for six years. The members shall be removable in the
manner provided for members of a municipal civil service commission in
the state civil service law. A vacancy in such commission shall be
filled in the same manner as regular appointments for the balance of the
unexpired term. The mayor shall designate a member as chair and vice
chair, respectively, for one-year terms. Within appropriations for such
purposes, the members of the commission shall be reimbursed on a per
diem basis for attendance at regularly scheduled meetings and hearings
of the commission.
(b) There shall be a screening committee which shall submit to the
mayor a list of nominees, which shall include persons with knowledge or
experience of the state civil service system, or personnel management,
or compensation practices, from which the mayor shall make appointments
to the city civil service commission. Such screening committee shall
consist of six members, of whom three shall be appointed by the mayor
and three shall be appointed by the municipal labor committee. The
screening committee shall submit the list of nominees upon the occur-
rence of any vacancy on the commission or at least three months prior to
the expiration of the term of any incumbent member.
(c) The commission shall appoint a counsel, who shall not be employed
or retained by any other city agency, and may appoint a secretary and
such other subordinates as may be necessary within the appropriation
therefor.
(d) The civil service commission shall have the power to hear and
determine appeals by any person aggrieved by any action or determination
of the personnel director made pursuant to section 12-04 of this chapter
and may order such relief as it deems appropriate or necessary in
accordance with this charter or the state civil service law. Any such
appeal shall be taken by application in writing to the commission within
thirty days after the action or determination appealed from. The commis-
sion shall also have the powers and responsibilities of a municipal
civil service commission under section seventy-six of the state civil
service law. In accordance with the requirements of this charter, the
commission shall promulgate rules of procedure, including rules estab-
lishing time schedules, for the hearings and determinations authorized
by this section.
(e) The commission shall have the power and duty to conduct reviews,
studies, or analyses of the administration of personnel in the city,
including the classification of titles by the personnel director.
(f) The commission shall prepare and transmit directly to the mayor
departmental estimates as required by this charter. The mayor shall
include such proposed appropriations for the commission as a separate
A. 10030 43
agency in the preliminary and executive budgets as are sufficient for
the commission to fulfill the obligations assigned to it by this charter
or other law.
§ 12-04. Personnel director; powers and duties.
(a) The personnel director shall have the following powers and duties
in addition to the powers and duties of a municipal civil service
commission provided in the state civil service law, and those vested in
the personnel director as the head of the department, except where any
specific power or duty is assigned to the mayor, heads of city agencies
or the civil service commission pursuant to this chapter:
1. to recruit personnel;
2. to make studies in regard to the grading and classifying of posi-
tions in the civil service, establish criteria and guidelines for allo-
cating positions to an existing class of positions, and grade and estab-
lish classes of positions;
3. to schedule and conduct examinations for positions in the civil
service;
4. to establish, promulgate and certify eligible lists in the manner
provided in the state civil service law, and the rules of the personnel
director;
5. to determine the appropriateness of eligible lists for the filling
of vacancies in the manner provided in the state civil service law and
the rules of the personnel director;
6. to investigate applicants for positions in the civil service; to
review their qualifications, and to revoke or rescind any certification
or appointment by reason of the disqualification of the applicant or
appointee under the provisions of the state civil service law, and the
rules of the personnel director or any other law;
7. to review any appointment of persons as provisional employees with-
in sixty days after appointment to assure compliance with this charter,
the state civil service law, and any rule or regulation issued pursuant
to this charter or state civil service law;
8. to certify payrolls in accordance with the provisions of the state
civil service law and the rules of the personnel director;
9. to keep records regarding candidates for appointment to the civil
service and officers and employees in the civil service;
10. to develop and recommend to the mayor standard rules governing
working conditions, vacations and leaves of absence; and career, salary
and wage plans providing for the creation, abolition and modification of
positions and grades and fixing salaries of persons paid from the city
treasury, subject to the provisions of this charter, the state civil
service law, other applicable statutes and collective bargaining agree-
ments;
11. to administer the city-wide incentive, training and development,
and other such personnel programs of the city;
12. to establish and enforce uniform procedures and standards to be
utilized by city agencies in establishing measures, programs and plans
to ensure a fair and effective affirmative employment plan for equal
employment opportunity for minority group members and women who are
employed by, or who seek employment with, city agencies. Such procedures
shall include a time schedule for the development of such plans which
provides for the preparation by each agency of a draft plan, the review
of such draft plan by the department of personnel, the equal employment
practices commission, and such other agency as the mayor requires, and
the consideration by the agency of any comments received on such draft
A. 10030 44
plans prior to the adoption of a final plan as required by section 12-05
of this chapter;
13. to establish a uniform format to be utilized by all city agencies
in the preparation of the quarterly reports required by section 12-05 of
this chapter. Such format shall provide for the presentation of statis-
tical information regarding total employment, new hiring and promotions
in a manner which facilitates understanding of an agency's efforts to
provide fair and effective equal opportunity employment for minority
group members, women and members of other groups who are employed by, or
who seek employment with, city agencies;
14. to develop, in conjunction with other city agencies, a clearing-
house for information on employment and educational programs and
services for minority group members and women; and
15. to provide assistance to minority group members and women employed
by, or interested in being employed by, city agencies to ensure that
such minority group members and women benefit, to the maximum extent
possible, from city employment and educational assistance programs.
(b) The personnel director shall have the following powers and duties
with respect to the personnel management functions assigned to city
agencies pursuant to subdivisions (a), (b), (c), and (d) of section
12-05 of this chapter:
1. to aid in the development of effective and efficient personnel
programs and professional personnel staffs in the agencies of the city;
and to convene the personnel officers of the agencies from time to time
as a personnel council to consider personnel matters of inter-agency or
of city-wide concern;
2. to approve agency plans and programs pursuant to section 12-05 of
this chapter;
3. to establish and enforce standards, guidelines and criteria for the
personnel management functions assigned to the agencies and to audit
performance by the agencies of such personnel functions;
4. to reverse or rescind any agency personnel action or decision
pursuant to an assignment or delegation of authority in this chapter,
upon a finding of abuse after notification to the agency and an opportu-
nity to be heard;
5. to hear and determine appeals by any person aggrieved by any action
or determination of the head of an agency made pursuant to section 12-05
of this chapter, subject to review by the civil service commission as
provided in subdivision (e) of section 12-03 of this chapter;
6. to delegate to the head of an agency personnel management functions
assigned to the personnel director where such delegation is not other-
wise prohibited by the state civil service law, and pursuant to terms
and conditions prescribed by the director;
7. to administer personnel programs of a city-wide nature or common to
two or more departments where administration by separate agencies would
be impracticable and uneconomical;
8. to annually publish and submit to the mayor, council and the
commission on equal employment practices a report on the activities of
the department of personnel and city agencies to provide fair and effec-
tive affirmative employment practices to ensure equal employment oppor-
tunity for minority group members and women who are employed by, or who
seek employment with, city agencies. Such report shall include, but not
be limited to, an analysis of the city government workforce and appli-
cants for such employment by agency, title and classification; a
description of each agency's employment practices, policies and
programs; an analysis of the effectiveness of the city's efforts to
A. 10030 45
provide fair and effective affirmative employment practices to ensure
equal employment opportunity for minority group members and women who
are employed by, or who seek employment with, city agencies; and such
legislative, programmatic and budgetary recommendations for the develop-
ment, implementation or improvement of such activities as the personnel
director deems appropriate.
(c) The personnel director shall promulgate rules and regulations
relating to the personnel policies, programs and activities of city
government in furtherance of and consistent with the state civil service
law and this chapter. The personnel director shall transmit to the state
civil service commission each proposed rule which must be submitted to
such commission, including any which establishes or reclassifies titles
in the non-competitive or exempt class, within sixty days after the
public hearing has been held on such rule.
(d) The personnel director shall, at the time requested by the city
civil service commission or the equal employment practices commission,
provide each commission with all the information which such commission
deems necessary to fulfill the duties assigned to it by the charter. The
provisions of this subdivision shall not apply to any information which
is required by law to be kept confidential or which is protected by the
privileges for attorney-client communications, attorney work products,
or material prepared for litigation.
(e) The personnel director shall submit a quarterly report to the
mayor, the council, the civil service commission and the equal employ-
ment practices commission. Such report shall specify, by agency and by
title, including temporary titles:
1. the number of provisional employees at the end of the second month
of the quarter;
2. the length of time such provisional employees have served in their
positions; and
3. the actions taken by the city to reduce the number of such provi-
sional employees and the length of their service in such positions. Such
reports shall be submitted by the last day of March, June, September,
and December of each year.
§ 12-05. Agency heads; powers and duties.
(a) Subject to the state civil service law and applicable provisions
of this charter, heads of city agencies shall have the following powers
and duties essential for the management of their agencies in addition to
powers and duties vested in them pursuant to this charter or other
applicable law:
1. to recruit personnel;
2. to participate with the personnel department in job analyses for
the classification of positions;
3. to allocate individual positions to existing civil service titles;
4. to allocate individual managerial or executive positions to manage-
rial assignment levels;
5. to assist the personnel department in the determination of minimum
qualifications for classes of positions and to review and evaluate qual-
ifications of candidates for positions in the civil service;
6. to assist the personnel director in the planning and preparation of
open competitive examinations;
7. to schedule and conduct tests other than written tests for
promotion to competitive class positions;
8. to determine whether to hold an open competitive or promotion exam-
ination to fill positions in the civil service subject to disapproval of
the personnel director within thirty days;
A. 10030 46
9. to plan and administer employee incentive and recognition programs;
10. to fill vacant positions within quarterly spending allotments and
personnel controls pursuant to this charter;
11. to administer and certify eligible lists for classes of positions
unique to the agency;
12. to make appointments to competitive positions from eligible lists
pursuant to subdivision one of section sixty-one of the state civil
service law, which authority shall not be abridged or modified by local
law or in any other manner;
13. to establish and administer performance evaluation programs to be
used during the probationary period and for promotions, assignments,
incentives and training;
14. to conduct training and development programs to improve the
skills, performance and career opportunities of employees;
15. to ensure and promote equal opportunity for all persons in
appointment, payment of wages, development and advancement;
16. to administer employee safety programs;
17. to maintain personnel records;
18. to perform such other personnel management functions as are deleg-
ated by the personnel director pursuant to this chapter or that are not
otherwise assigned by this chapter;
19. to establish measures and programs to ensure a fair and effective
affirmative employment plan to provide equal employment opportunity for
minority group members and women who are employed by, or who seek
employment with, the agency and, in accordance with the uniform proce-
dures and standards established by the department of personnel for this
purpose, to adopt and implement an annual plan to accomplish this objec-
tive. Copies of such plans shall be filed with the mayor, council,
department of personnel, equal employment practices commission, and city
civil service commission and shall be made available for reasonable
public inspection; and
20. to provide assistance to minority group members and women inter-
ested in being employed by city agencies to ensure that such minority
group members and women benefit, to the maximum extent possible, from
city employment and educational assistance programs.
(b) Within one year from the effective date of this charter, the head
of each agency shall prepare and submit to the mayor and the personnel
director a plan and schedule for the discharge of the powers and duties
assigned in this section. No such plan shall take effect until approved
by the mayor.
(c) The mayor may modify, suspend, or withdraw for cause any power or
duty assigned or delegated to the head of an agency pursuant to this
section.
(d) Notification prior to each action or decision of an agency pursu-
ant to this chapter which changes the status of an individual employee,
a position, or a class of positions shall be provided to the personnel
director. The head of each agency shall certify on each payroll that all
personnel actions and transactions of the agency conform with the
provisions of the state civil service law and this chapter, the rules of
the personnel director and other applicable law.
(e) Before any new position in the city service shall be created, the
agency head shall furnish the commissioner of finance with a certificate
stating the title of the class of positions to which the position is to
be allocated. If the position is to be allocated to a new class of posi-
tions, the agency head shall request of the personnel director, and the
personnel director shall furnish to the agency head and the commissioner
A. 10030 47
of finance, a certificate stating the appropriate civil service title
for the proposed position, the range of salary of comparable civil
service positions and a statement of the class specifications and line
of promotion into which such new position will be placed and any such
new position shall be created only with the title approved by the
personnel director.
(f) The heads of all agencies shall, except as otherwise provided by
law, have power to appoint and remove, subject to the provisions of the
state civil service law, all chiefs of bureaus and all other officers,
employees and subordinates in their respective administrations, depart-
ments or offices, without reference to the tenure of office of any
appointee and to assign them their duties. Nothing herein shall be
construed to preclude the mayor from entering into a collective bargain-
ing agreement which provides for a procedure governing the discipline of
employees, including their removal.
(g) The heads of city agencies or their designated representatives
shall fulfill the requirements for agency participation in matters
affecting the management of the agency in advance of collective bargain-
ing negotiations affecting employees.
(h) The head of each city agency shall ensure that such agency does
not discriminate against employees or applicants for employment pursuant
to federal, state and local law.
(i) The head of each city agency shall quarterly publish and submit to
the mayor, council, department of personnel, and the equal employment
practices commission a report on the agency's efforts during the previ-
ous quarter to implement the plan adopted pursuant to this section.
(j) The head of each city agency shall include in all employment
retention, recruitment, training and promotional program literature,
advertisements, solicitations and job applications, such language as may
be necessary to effectuate the purpose of this chapter.
(k) The head of each city agency shall require each employment agency,
or authorized representative of workers with which it has a collective
bargaining or other agreement or understanding and which is involved in
the performance of recruitment and retention with the agency to furnish
a written statement that such employment agency, labor union or repre-
sentative shall not discriminate against employees or applicants for
employment pursuant to federal, state or local law and that such union
or representative will cooperate in the implementation of the agency's
obligations pursuant to this chapter.
§ 12-06. Management service.
(a) The personnel director, in consultation with the heads of agen-
cies, shall develop and submit to the mayor a city-wide plan and sched-
ule for the development of qualified and competent technical, profes-
sional, management, administrative, and, supervisory personnel in the
civil service to meet the managerial needs of city government. The
mayor shall approve, disapprove or modify the plan within one year after
the effective date of this charter.
(b) The city-wide plan shall establish a management service for city
agencies and shall provide for:
1. membership in the service of employees with significant policy,
administrative, supervisory, managerial or professional duties that
require the exercise of independent judgment in the scheduling and
assignment of work, program management or planning, evaluation of
performance or allocation of resources;
2. preference for appointment into management service shall be given
to qualified civil service employees pursuant to promotional examina-
A. 10030 48
tions administered in a manner consistent with the requirements of the
state civil service law;
3. assessments of capacity and potential to perform managerial duties
as part of competitive tests for entry into the service and assignments
within the service;
4. a single managerial class of positions for each occupational series
within the service with assignment levels within each such class;
5. a plan for achieving equitable pay scales for members of the
service consonant with their duties and responsibilities;
6. merit increases, incentive awards, and recognition programs for
members of the services;
7. performance evaluations for members of the service to be used for
assignments, incentive awards, probationary period review, and discipli-
nary action;
8. a probationary period not to exceed one year for members of the
service;
9. management intern programs; and
10. training and career development programs.
(c) The personnel director shall conduct city-wide programs and func-
tions related to the management service; assist agencies in the imple-
mentation of the management service plan; and review and evaluate agency
performance under the plan.
§ 12-07. Appointments and promotions.
(a) All appointments, promotions and changes in status of persons in
the public service of the city shall be made in the manner prescribed by
the constitution of the state and in accordance with the provisions of
the state civil service law and other provisions of law not inconsistent
therewith nor with this charter.
(b) Whenever qualifications for the appointment of persons to public
office are prescribed by law, the appointing officer shall, upon making
such appointment, file with the civil service commission a certificate
that such appointment complies with such law.
§ 12-08. Power of investigation.
The personnel director and the city civil service commission shall
have the power to make investigations concerning all matters touching
the enforcement and effect of the provisions of the state civil service
law insofar as it applies to the city and the rules and regulations
prescribed thereunder, or concerning the actions of any examiner or
subordinate of the department, or of any officer or employee of the city
or of any county within the city, in respect to the execution of the
state civil service law; and in the course of such investigations the
personnel director of the city civil service commission shall have the
power to administer oaths, to compel the attendance of witnesses, and to
examine such persons as deemed necessary.
§ 12-09. No compensation to unauthorized employees.
No officer of the city whose duty is to sign or countersign warrants
shall draw, sign or issue, or authorize the drawing, signing or issuing
of any warrant on the commissioner of finance or other disbursing offi-
cer of the city for payment of salary to any person in its service whose
appointment or retention has not been in accordance with the state civil
service law and the valid rules in force thereunder.
§ 12-10. Examination for licenses.
The personnel director shall, unless otherwise provided by law, have
power, upon request of any person charged with the duty of issuing
licenses or permits, to conduct, under rules and regulations to be
established by the personnel director, examinations and tests to deter-
A. 10030 49
mine the qualifications of persons applying for such licenses or
permits. The personnel director shall certify to the person having power
to issue the license or permit the result of any such examination or
test.
§ 12-11. Officers or employees designated to serve in exempt civil
service positions.
(a) Notwithstanding any provision in this charter to the contrary, the
mayor or head of an agency may designate any officer or employee occupy-
ing a position in the competitive class of the civil service to serve in
a position in the exempt class, and in such case, the officer or employ-
ee so designated shall thereupon enter upon and exercise all the powers
and duties and receive the salary of such exempt position, and shall
retain all the rights, privileges and status of such officer or employ-
ee's position in the competitive class.
(b) The appointment of any person chosen to fill the position thus
left vacant shall be temporary and shall terminate upon the return of
such officer or employee to such position as provided in subdivision (e)
of this section.
(c) Such designation shall be in writing and shall be filed and remain
of record in the office of such agency, in the office of the personnel
director and in the office of the mayor and shall remain in force until
revoked by the mayor or head of such agency, as the case may be.
(d) Service in such position in the exempt class shall be credited as
service in the competitive class and the status of such officer or
employee in respect to pensions or otherwise shall not be adversely
affected by such designation.
(e) Upon the termination of the officer or employee's services in such
exempt position, except by dismissal for cause in the manner provided in
section seventy-five of the state civil service law, such officer or
employee shall immediately and without further application return to the
position in the competitive class with the status, rights, privileges
and salary enjoyed immediately prior to the designation to the position
in the exempt class as if service in the competitive position had been
continuous.
§ 12-12. Residency exemption.
Any employee who was previously employed by the city of New York, and
who is appointed, reassigned or transferred to city employment, without
a break in service shall be exempt from any residency requirement in
connection with his or her employment or subsequent promotion, demotion,
reassignment, transfer or other personnel change. For the purpose of
this section, a break in service shall be defined as a period of more
than one year.
Chapter 13
Equal Employment Practices Commission
§ 13-01. Equal employment practices commission.
(a) There shall be an equal employment practices commission which
shall review, evaluate and monitor the employment procedures, practices
and programs of any city agency and the department of personnel to main-
tain an effective affirmative employment program of equal employment
opportunity for minority group members and women who are employed by or
who seek employment with city agencies.
(b) The commission shall consist of three members who shall be compen-
sated on a per diem basis. The mayor, the council, and the comptroller
shall each appoint one member. The mayor shall appoint a member to serve
as the chair.
(c) Members shall be appointed for four-year terms.
A. 10030 50
(d) The commission may, within the appropriations available therefor,
appoint an executive director and such deputies, assistants, and other
employees as may be needed for the performance of the duties prescribed
herein.
(e) The commission may meet as necessary to implement the provisions
of this chapter provided that the commission shall meet at least once
every eight weeks.
§ 13-02. Duties and powers of the equal employment practices commis-
sion.
(a) The commission:
1. shall monitor the employment policies, programs and practices of
each city agency; and
2. monitor the coordination and implementation of any city affirmative
employment program of equal employment opportunity for minority group
members and women who are employed by or who seek employment with city
agencies, including the activities of the department of personnel, and
the civil service commission, pursuant to chapter twelve of this char-
ter, and any other agency designated by the mayor to assist in the
implementation or coordination of such efforts, and all city agencies
required by section 12-05 of this charter to establish agency program.
(b) The commission may request and shall receive from any city agency
such information, other than information which is required by law to be
kept confidential or which is privileged as attorney client communi-
cations, attorney work products or material prepared for litigation, and
such assistance as may be necessary to carry out the provisions of this
chapter.
(c) The commission shall communicate to any appropriate authority any
information regarding suspected or alleged violations of this chapter.
(d) The commission shall have the following powers and duties:
1. to review the uniform standards, procedures, and programs of the
department of personnel pursuant to section 12-04 of this charter, and
to review the plans adopted by city agencies in accordance with the
provisions of section 12-05 of this charter, and to provide any such
agency or the department of personnel with such comments and suggestions
as the commission deems necessary and appropriate;
2. to recommend to the department of personnel, all city agencies, or
any one or more particular agencies, procedures, approaches, measures,
standards and programs to be utilized by such agencies in their efforts
to ensure a fair and effective affirmative employment program of equal
employment opportunity for minority group members and women who are
employed by or seek employment with city agencies;
3. to recommend to any city agency actions which such agency should
consider including in its next annual plan as required by section 12-05
of this charter;
4. to advise and, if requested, assist city agencies in their efforts
to increase employment of minority group members and women who are
employed by or who seek employment with city agencies;
5. to audit and evaluate the employment practices and procedures of
each city agency and their efforts to ensure fair and effective equal
employment opportunity for minority group members and women at least
once every four years and whenever requested by the civil service
commission or the human rights commission or whenever otherwise deemed
necessary by this commission;
6. to make such policy, legislative and budgetary recommendations to
the mayor, council, the department of personnel or any city agency as
A. 10030 51
the commission deems necessary to ensure equal employment opportunity
for minority group members and women;
7. to publish by the fifteenth of February of each year a report to
the mayor and the council on the activities of the commission and the
effectiveness of each city agency's affirmative employment efforts and
the efforts by the department of personnel to ensure equal employment
opportunity for minority group members and women who are employed by or
seek to be employed by city agencies;
8. to establish appropriate advisory committees;
9. to serve with such other agencies or officials as shall be desig-
nated by the mayor as the city liaison to federal, state and local agen-
cies responsible for compliance with equal employment opportunity for
minority group members and women who are employed by or who seek to be
employed by city agencies; and
10. to take such other actions as are appropriate to effectuate the
provisions and purposes of this chapter.
§ 13-03. Compliance procedures.
(a) The commission shall conduct such study or investigations and hold
such hearings as may be necessary to determine whether agencies are in
compliance with the equal employment opportunity requirements of this
chapter and chapter twelve of this charter.
(b) For the purpose of ascertaining facts in connection with any study
or investigation authorized by this chapter, the commission shall have
power to compel the attendance of witnesses, to administer oaths and to
examine such persons as they may deem necessary. The commission or any
agent or employee thereof duly designated in writing by them for such
purposes may administer oaths or affirmations, examine witnesses in
public or private hearing, receive evidence and preside at or conduct
any such study or investigation.
(c) If the commission makes a preliminary determination pursuant to
section 13-02 of this chapter, that any plan, program, procedure,
approach, measures or standard adopted or utilized by any city agency or
the department of personnel does not provide equal employment opportu-
nity; and/or if the commission makes a preliminary determination pursu-
ant to this chapter and chapter twelve of this charter, that an agency
has not provided equal employment opportunity the commission shall noti-
fy the agency in writing of this determination and provide an opportu-
nity for the agency to respond. If the commission, after consideration
of any such response and after consulting with the agency, concludes
that the corrective actions, if any, taken or planned by the agency are
not sufficient to correct the non-compliance identified in the prelimi-
nary determination, it should make a final determination in writing,
including such recommended corrective action as the commission may deem
appropriate. The agency shall within thirty days thereafter respond to
the commission on any corrective action it intends to make and shall
make monthly reports to such commission on the progress of such correc-
tive action. If the commission, after a period not to exceed six months,
determines that the agency has not taken appropriate and effective
corrective action, the commission shall notify the agency in writing of
this determination and the commission may thereafter publish a report
and recommend to the mayor whatever appropriate corrective action the
commission deems necessary to ensure compliance with equal employment
opportunity pursuant to the requirements of this chapter and chapter
twelve of this charter. Within thirty days of such determination the
agency shall submit a written response to the commission and the mayor.
The mayor after reviewing the commission's findings and the agency's
A. 10030 52
response, if any, shall order and publish such action as he or she deems
appropriate.
Chapter 14
Collective Bargaining
§ 14-01. Office of collective bargaining; director.
There shall be an office of collective bargaining, the head of which
shall be the director of such office, who shall be the person holding
the office of chairman of the board of collective bargaining. The
director may appoint, and at pleasure remove, two deputies.
§ 14-02. Board of collective bargaining.
There shall be in the office of collective bargaining a board of
collective bargaining, which shall consist of five members. Two members
of the board shall be city members, two members of the board shall be
labor members, and one impartial member who shall be the chair. The
mayor shall have the power to appoint the city members of the board to
serve at the mayor's pleasure, and the labor members of the board from
designations by the municipal labor committee. Each labor and city
member shall have an alternate, who shall be appointed and removed in
the same manner as the member for whom he or she is the alternate. The
chair shall be elected by the unanimous vote of the city and labor
members, and shall serve for three year terms.
Notwithstanding any other provision of law, a labor member may not be
removed from the board except upon request of the municipal labor
committee, or except for cause, as hereinafter provided. Any member may
be removed for cause by a majority of the entire board, including at
least one city member and one labor member, after having been given a
copy of the charges against him and an opportunity to be heard in person
or by counsel in his or her defense upon not less than ten days notice.
Vacancies in the office of a city member or a labor member shall be
filled in the same manner as herein provided for appointment. Vacancies
in the office of an impartial member occurring otherwise than by expira-
tion of term shall be filled by unanimous vote of the city and labor
members for the unexpired balance of the term.
§ 14-03. Bureau of certification.
There shall be in the office of collective bargaining a bureau of
certification, which shall be administered by the impartial member of
the board of collective bargaining.
§ 14-04. Powers and duties.
The office of collective bargaining, the board of collective bargain-
ing and the bureau of certification shall have such powers and duties
with respect to labor relations and collective bargaining as shall be
prescribed by law and which shall be substantially equivalent to chapter
3 of title 12 of the New York city administrative code as it existed on
the date this charter was submitted pursuant to subdivision c of section
4 of chapter 773 of the laws of 1989 and shall also provide for a Staten
Island municipal labor committee.
§ 14-05. Compensation.
(a) Board of collective bargaining; bureau of certification director.
The city members and the labor members of the board of collective
bargaining and their alternates shall serve without compensation. The
director shall be salaried for his or her services as director, chair of
the board of collective bargaining, and administrator of the bureau
certification. The director and all members of both such boards and
their alternates shall be entitled to receive a per diem fee and
reimbursement for their actual and necessary expenses incurred in the
performance of their duties. Fifty percent of the salary, fees, and
A. 10030 53
expenses provided for in this subdivision shall be paid by the members
of the municipal labor committee, under rules and regulations issued by
the board of collective bargaining, which rules may provide how such
costs shall be distributed among such members.
(b) Members of mediation and impasse panels; arbitrators. Members of
mediation and impasse panels, and arbitrators, shall be paid a per diem
fee to be determined by the board of collective bargaining, unless the
parties to the particular dispute shall have agreed to a different fee,
and shall be reimbursed for their actual and necessary expenses incurred
in the performance of their duties. The public employer and public
employee organization which are parties to the particular negotiation or
grievance shall each pay fifty percent of such fees and expenses and
related expenses incidental to the handling of deadlocked negotiations
and unresolved grievances.
(c) Appointment of counsel and attorneys. The director may appoint a
counsel and attorneys, who, at the direction of the bureau of certif-
ication or the board of collective bargaining may appear for and repre-
sent the office of collective bargaining or either of the aforesaid
boards in any legal proceeding.
§ 14-06. Publication of collective bargaining agreements.
Not later than sixty calendar days after the execution of a collective
bargaining agreement, a copy shall be published in a newspaper of gener-
al circulation in the city together with a statement by the mayor:
(a) of the total costs and current and future budgetary and economic
consequences of the agreement, and
(b) of the implications and likely impact of the agreement on the
efficient management of city agencies and the productivity of city
employees.
§ 14-07. Budgeting for agreements.
(a) So far as practicable, each collective bargaining agreement cover-
ing city employees shall be executed prior to the commencement of the
fiscal year during which its provisions shall first be in effect.
(b) No part of any retroactive wage or salary settlement shall be
charged to the capital budget.
Chapter 15
Transitory Provisions
§ 15-01. Rights of officers and employees of the city of New York
preserved.
(a) Nothing in this charter contained shall affect or impair the
rights or privileges of officers or employees of the city of New York
who are transferred, reassigned, appointed or otherwise employed by the
city in relation to the personnel, appointment, salaries, ranks, grades,
tenure of office, promotion, removal, pension and retirement rights,
civil rights or any other rights or privileges of officers or employees
of the city generally or officers or employees of any agency.
(b) There shall be no layoffs of officers or employees of the city of
New York classified municipal civil service as a result of transfer of
functions or work currently being performed by employees or officers of
the city of New York to the city of Staten Island. The city shall guar-
antee the continued employment of all officers and employees of the city
of New York who are performing duties and functions related to any
municipal governmental operation affecting the city of Staten Island at
the time this charter takes effect.
§ 15-02. Transfer of officers and employees in case of transfer of
functions.
A. 10030 54
Wherever by any provision of this charter functions, powers or duties
are assigned to any agency which have been heretofore exercised by the
city of New York, its agencies, boards, corporations or other related
entities, all officers and employees in the classified municipal civil
service who at the time when such charter provisions shall take effect
are engaged in the performance of such functions, powers or duties shall
be transferred to the agency to which such functions, powers or duties
are assigned by this charter, without examination and without affecting
existing compensation or pension or retirement rights, privileges or
obligations of such officers and employees. Furthermore, any employee to
be transferred to the city pursuant to this charter shall be given the
option to remain in the employ of the city of New York without diminu-
tion of rights, privileges, salary and benefits. Any employee not
included in such transfer shall be able to protest the decision pursuant
to the procedures set forth in section seventy of the civil service law.
§ 15-03. Continuity of employee representation.
Employees transferred from the city of New York to the city except for
those designated managerial or confidential shall be included in employ-
er - employee negotiating units comparable to existing units in the city
of New York. With respect to employees to be placed in such negotiating
units, the public employee organization recognized or certified to
represent the employees in comparable city of New York negotiating units
shall be recognized as the city unit representative.
§ 15-04. Continuity of collectively bargained benefits.
All rights, privileges and benefits provided by collectively bargained
agreements to city of New York employees shall be continued for such
employees transferred, reappointed or otherwise employed by the city
until such time as successor collective bargaining agreements are nego-
tiated.
§ 15-05. Future alterations of the negotiating units.
Future alterations of the city negotiating units shall be made pursu-
ant to article fourteen of the state civil service law and office of
collective bargaining implementing legislation.
§ 15-06. Establishment of new titles.
(a) The city shall consult and bargain on all terms and conditions of
employment with the appropriate public employee organization with
respect to the establishment of any new titles which are similar to or
reasonably related to titles already represented by such public employee
organizations in the city or in the city of New York.
(b) Any such titles for which terms and conditions are bargained
pursuant to subdivision (a) of this section shall be deemed to be
successor titles within the meaning of applicable law. So long as the
responsibilities of employees in these titles are reasonably related to
the responsibilities of employees currently represented by public
employee organizations, such titles shall be accredited or placed in a
negotiating unit represented by such public employee organizations.
§ 15-07. Dispute resolution.
If a dispute arises, the office of collective bargaining shall deter-
mine which public employee organization is appropriate to represent
transferees, other hires, or employees in a new title on the basis of
the title's community of interest with titles in the city and the city
of New York.
§ 15-08. Existing rights and remedies preserved.
No existing right or remedy of any character shall be lost or impaired
or affected by reason of the adoption of this charter.
A. 10030 55
Chapter 16
Labor Relations
§ 16-01. Department; commissioner.
(a) There is established a department of labor relations, the head of
which shall be the commissioner of labor relations.
(b) The commissioner of labor relations is hereby authorized to repre-
sent the mayor in the conduct of all relations between the city and
labor unions, associations, or other organizations representing employ-
ees of the city. The commissioner of labor relations shall be responsi-
ble for the conduct of all relations and she or he shall establish broad
city wide policy governing them.
(c) The appropriate city staff agencies shall render advice to the
commissioner of labor relations on questions of law, finance, personnel
policy, operations and management.
§ 16-02. Powers and duties.
(a) The commissioner of labor relations is authorized to negotiate
labor agreements with the unions certified as representing the various
groups of city employees, and to prepare and sign labor agreements on
behalf of the mayor.
(b) The heads of all city departments and agencies and the staff of
the office of the mayor shall cooperate fully with the commissioner of
labor relations in carrying out his or her responsibilities. This coop-
eration shall include, but not be limited to the following:
1. notice and transmittal to the commissioner of labor relations of
all inquiries and requests from labor unions, associations or other
organizations representing employees of the city soliciting interpreta-
tion of any agreement;
2. actions by city departments or agencies based upon interpretations
of collective bargaining agreement shall not be taken without prior
consultation with the commissioner of labor relations;
3. agreements, contracts or understandings, verbal or written, shall
be consummated between the head of any city department or agency or one
of his or her subordinates, and a union or organization representing
employees of that agency, only after prior consultation and review by
the commissioner of labor relations;
4. grievance and dispute settlement procedures such as arbitration,
mediation, fact-finding and labor-management conference discussions
relating to city employee labor disputes or grievances, either advisory
or binding, shall be entered into by city departments or agencies only
after prior consultation and review of the commissioner of labor
relations. Such settlement procedures shall be processed through and
handled by the department of labor relations;
5. city departments and agencies shall not unilaterally change, in a
substantial way, the working conditions of their employees without prior
consultation with the commissioner of labor relations;
6. city departments and agencies shall not take disciplinary action
against any employee or group of employees involved in a labor relations
dispute without prior consultation with the commissioner of labor
relations;
7. city departments and agencies shall provide the commissioner of
labor relations with all necessary information needed in the conduct of
labor negotiations affecting employees in their departments and shall
participate with the commissioner of labor relations in the negotiations
as, in the opinion of the commissioner of labor relations, may be neces-
sary from time to time;
A. 10030 56
8. heads of city departments and agencies and the staff of the office
of the mayor shall give notice to the commissioner of labor relations of
all meetings held with labor unions, associations, or other organiza-
tions representing city employees;
9. heads of city departments and agencies and the staff of the mayor
shall consult with the commissioner of labor relations prior to the
issuance of any public or press statement relating to labor relations
with city employees;
10. the labor relations officer of each city department and agency
shall act as liaison with the department of labor relations and shall
keep that department informed of employee relations problems in his or
her department or agency. In particular, he or she shall immediately
notify the department of labor relations of any threatened or actual
strike, work stoppage, job action, mass resignation or picketing by
employees of his or her department or agency.
§ 3-001. Legislative findings and declaration of purposes.
The legislature hereby finds and declares that it is essential that a
municipal corporation of the city of Staten Island be authorized to
represent the interests of the city of Staten Island during the transi-
tion period prior to the date of establishment of the city, provide
preparation for the operations of the city and provide financing for
such transition period and initial funding for the city.
§ 3-002. Elections.
1. The board of elections of the city of New York shall provide for
the election of a mayor, a city comptroller and a common council, as
provided for in chapter 773 of the laws of 1989, as amended, for a poli-
tical subdivision of the state to be known as the city of Staten Island,
at the general election to be held in November next succeeding the date
on which this section shall have become a law in the county of Richmond.
Such expenses for such election will be reimbursed by the state from
those moneys to be allocated as general state aid to a city of Staten
Island. Chapter 7 of title 3 of the administrative code of the city of
New York, known as the "New York City Campaign Finance Act", shall not
apply to such elections.
2. The Mayor elect and common council elect of the city of Staten
Island, upon the constitutional oath of office, are hereby authorized to
represent the interests of the city of Staten Island, and as govern-
mental officers of the city of Staten Island are authorized to enter
into negotiations as provided under this act and enter into such
purchase or employment contracts as would be authorized for such city
subsequent to the date of establishment. Any such contracts or agree-
ments from such negotiations shall be binding upon the city of Staten
Island.
3. The mayor elect, the comptroller elect and the common council elect
shall take the oath of office on the first of January next succeeding
the date on which this act shall have become a law, at which time the
city shall be incorporated. The mayor, city comptroller and common coun-
cil shall establish accounts according to the provisions of the charter
of the city of Staten Island and appoint such other city officers as may
be necessary in accordance with the provisions of the city charter.
§ 3-003. Staten Island city government-transition.
1. Short title. This section may be cited as the "Staten Island City
Government-Transition Act".
2. Definitions. For the purposes of this section:
(a) "City" means the city of Staten Island.
A. 10030 57
(b) "Director of management and budget" means the director of manage-
ment and budget of the city of Staten Island.
(c) "Corporation" means the municipal corporation as created by this
section.
(d) "Mayor" means the mayor of the city of Staten Island.
(e) "Comptroller" means the comptroller of the city of Staten Island.
(f) "State" means the state of New York.
(g) "Bonds" and "notes" means revenue bonds and notes respectively,
issued by the corporation pursuant to this section.
(h) "Revenues" means all aid, rents, fees, charges, payments and other
income and receipts paid or payable to the municipal corporation for the
account of the city of Staten Island, including any payment required to
be made to the corporation by this section.
(i) "Operating expenses" means all expenses incurred by the government
in the administration of the municipal corporation including but not
limited to salaries, administrative expenses, insurance premiums, audit-
ing and legal expenses and fees and expenses incurred for professional
consultants and fiduciaries.
(j) "Capital reserve fund requirement" means as of any particular date
of computation, an amount of money equal to the amount required, for the
then current fiscal year of the municipal corporation, to pay interest
during such fiscal year on all bonds of the corporation outstanding on
said date of computation, the principal amount of all bonds of the
corporation outstanding on said date of computation which matures during
such fiscal year and the amount of sinking fund payments payable during
such fiscal year with respect to any bonds of the corporation outstand-
ing on said date of computation.
(k) "Sinking fund payment" means the amount of money specified in the
resolution authorizing bonds as payable into a sinking fund during a
particular fiscal year for the retirement of term bonds which mature
after such fiscal year, but shall not include any amount payable by
reason only of the maturity of the bond.
3. General powers as a municipal corporation. The city shall have the
following powers in addition to those specially conferred elsewhere in
this act: (a) to sue and be sued; (b) to have a seal and alter the same
at pleasure; (c) to make and alter by-laws for its organization and
internal management and, subject to agreements with noteholders or bond-
holders, to make rules and regulations governing the use of its property
and facilities; (d) to make and execute contracts, leases, subleases and
all other instruments or agreements necessary or convenient for the
exercise of its powers and functions under this section; (e) to purchase
real or personal property necessary and convenient for its municipal
purposes; to execute and deliver deeds for real property held in its own
name; and to sell or otherwise to dispose of such real or personal prop-
erty that, in the judgment of the city, is no longer necessary for its
municipal purposes; (f) to appoint officers, agents and employees,
prescribe their duties and qualifications and fix their compensation;
(g) to commence any action to protect or enforce any right conferred
upon it by any law, contract or other agreement; (h) to borrow money and
to issue negotiable notes or bonds or other obligations and to fund or
refund the same, and to provide for the rights of the holders of its
obligations; (i) subject to the provisions of any contract with note-
holders or bondholders, to invest any funds held in reserves or sinking
funds, or any funds not required for immediate use or disbursement, at
the discretion of the city, in obligations of the state or federal
government, obligations the principal of and interest on which are guar-
A. 10030 58
anteed by the state or federal government, or obligations of agencies of
the federal government which may, from time to time, be legally
purchased by savings banks of the state as investments of funds belong-
ing to them or in their control and which have been approved by the
state comptroller or in secured time deposits or other interest bearing
accounts secured by such obligations; (j) subject to the provisions of
any contract with noteholders or bondholders, to purchase notes or bonds
of the city; (k) to procure insurance against any loss in such amounts
and from such insurers as it deems desirable; (l) to engage the services
of consultants on a contract basis for rendering professional and tech-
nical assistance and advice; (m) to contract for and to accept any gifts
or grants or loans of funds or property or financial or other aid in any
form from the federal government or any agency or instrumentality there-
of, or from any other source and to comply with the terms and conditions
thereof; (n) as security for the payment of the principal of and inter-
est on any bonds so issued and any agreements made in connection there-
with, to pledge all or any part of its revenues; (o) to enact such local
laws to take effect on the date of establishment as shall be necessary
to provide for effective transition of government; and (p) to do any and
all things necessary or convenient to carry out its purposes and exer-
cise the powers expressly given and granted in this act.
4. Notes and bonds of the city. The city shall have power and is here-
by authorized from time to time to issue its negotiable notes and bonds
in conformity with applicable provisions of the uniform commercial code,
the local finance law and the state finance law.
§ 3-004. Employees of the city of Staten Island.
1. Notwithstanding any inconsistent provisions of this act, the
appointment and promotion of all employees of and for the city shall be
made in accordance with the provisions of the state civil service law
and shall be subject to the jurisdiction of the state civil service
commission and the compensation for such employees shall be fixed by the
city.
2. Any municipality and the city shall have the power to agree to
provide for the transfer to the city of agents, employees and facilities
of such municipality to enable the city to fulfill its municipal
purposes. Employees of such municipality to be transferred to the city
pursuant to this act shall be automatically appointed and transferred to
the city in the same or equivalent classification and position they hold
at the time of the transfer. The city, its officers and employees,
shall be subject to article fourteen of the state civil service law and
for all purposes the city shall remain and be deemed "public employer".
Employees who are members or beneficiaries of any existing pension or
retirement system shall continue to have such rights, privileges, obli-
gations or status with respect to such system as are prescribed by law
on the date this act takes effect, and all such employees who have been
appointed to positions in municipal service in accordance with the
provisions of the state civil service law under the rules of the city
civil service commission shall have the same status with respect thereto
in the service of the city as they had in prior municipal service.
3. Transfer rights. Notwithstanding any other provision of law, there
shall be no layoffs of officers or employees of the preceding munici-
pality, its agencies, authorities, boards, corporations or other related
entities as a result of the transfer of functions or work currently
performed by these officers and employees to the city of Staten Island.
All such employees who have been assigned to work on Staten Island or
who have been substantially engaged in the performance of a function to
A. 10030 59
be transferred to the city of Staten Island shall be transferred to
positions in employment by the city of Staten Island upon the establish-
ment of the city of Staten Island and shall retain all rights, privi-
leges, benefits and salaries to which any such employee was previously
entitled as an employee of the preceding municipality. Notice that an
employee is subject to transfer shall be given to an employee no less
than twenty days prior to the effective date of transfer. Any employee
so notified may opt to remain in his or her employment by the preceding
municipality rather than be transferred by so informing his or her
employer ten days prior to the transfer date. Such employee shall be
retained in employment by the preceding municipality and retain all
rights, privileges, benefits and salaries to which the employee was
entitled prior to the establishment of the city of Staten Island.
4. Transfer mechanism. The mechanism for the transfer of the employees
to the city of Staten Island shall be the subject of negotiations among
the preceding municipality, the city of Staten Island and the appropri-
ate public employee organizations. The parties shall negotiate an
appeals process for employees aggrieved by their exclusion from the
transfer. If the parties are unable to reach agreement as to transfer
issues, the parties shall submit such issues to mediation and, if neces-
sary, impasse panels to be appointed in accordance with the collective
bargaining provisions of the administrative code of the preceding muni-
cipality. Transferees represented by the public employee organizations
shall be entitled to all rights and benefits which they were entitled to
prior to transfer including, but not limited to, seniority and accrued
annual and sick leave time.
5. Vacancies. Any employee of the preceding municipality not subject
to the transfer set forth in subdivision three of this section shall be
eligible to transfer to a vacant position in a title in the city of
Staten Island requiring the same, similar or related duties to duties
actually performed in the preceding municipality title by submitting
written notice of intent to transfer to the city of Staten Island direc-
tor of personnel within six months of the establishment of the city of
Staten Island. The preceding municipality shall inform in writing
employees who are residents of Staten Island of their right to apply for
transfer. Immediately upon receipt of any notice to transfer, the direc-
tor of personnel shall establish for each city of Staten Island title
two lists of eligible employees who give timely notice in order of the
employees' preceding municipality seniority in the title requiring the
same, similar or related duties. The first list shall include the names
of transfer applicants who are domiciled in the city of Staten Island on
the date of the submission of the notice. The second list shall include
the names of transfer applicants not domiciled in the city of Staten
Island. Appointments to any vacant positions in these titles shall be
made from the Staten Island domicile list and, when that list is
exhausted, from the second list until such lists are exhausted or until
a period of four years from the date of the establishment of the indi-
vidual list has expired.
6. Residency exemption. Any employee of the preceding municipality
appointed, reassigned or transferred to city of Staten Island employment
without a break in service shall be exempt from any residency require-
ment in connection with his or her employment or subsequent promotion,
demotion, reassignment, transfer or other personnel change. For the
purpose of this section, a break in service shall be defined as a period
of more than one year. Notwithstanding any other provision of law, any
Staten Island resident employed by the preceding municipality or on
A. 10030 60
leave of absence from such employment on the date of the establishment
of the city of Staten Island shall be exempt from any residency require-
ment in connection with his or her preceding municipality employment or
subsequent preceding municipality promotion, demotion, reassignment,
transfer or other personnel change.
7. Retirement. The city of Staten Island shall participate in the
State's retirement systems.
(a) On and after the date of the establishment of the city of Staten
Island, employees of the preceding municipality who are transferred to
employment in the city of Staten Island shall thereupon become members
of the appropriate state retirement system to the extent permitted or
required by the provisions of the retirement and social security law,
the education law or local law, as appropriate, and the employees'
reserves in any other retirement system shall be transferred to the
appropriate New York state retirement system without request by them or
notice to the retirement systems, except that any such employee who is a
member of one of the retirement systems of the preceding municipality
may elect to continue membership in such system. Any election pursuant
to this subdivision shall be made no later than the one hundred twenti-
eth day succeeding the date on which the provisions of this section
become effective, by filing a written notice thereof with the adminis-
trative head of the appropriate New York state, preceding municipality
and city of Staten Island retirement systems, as appropriate, and once
made and filed, shall be irrevocable. Upon the retirement of an employee
who has made such an election, the calculation of final average salary
by the retirement system of the preceding municipality shall be
performed as if the salary earned as a city of Staten Island employee on
and after the effective date of this section was earned in employment of
the preceding municipality. In the case of an employee who remains or
becomes a member of a New York state employees' retirement system pursu-
ant to this subdivision, the retirement system of the preceding munici-
pality shall make a transfer of reserves, contributions and credits to
such New York state employees' retirement system, in the manner required
by section 43 of the retirement and social security law.
(b) The comptroller of the preceding municipality shall certify to the
comptroller of the city of Staten Island and the state comptroller or
other chief officer of a state pension system the amount of money
required to be paid by the city of Staten Island for pension costs
resulting from elections made pursuant to paragraph (a) of this subdivi-
sion and the comptroller of the city of Staten Island shall pay to the
retirement system of the preceding municipality upon approval by the
state comptroller or other chief officer of a state pension system, the
amounts so certified by the comptroller of the preceding municipality.
The comptroller of the preceding municipality shall also certify to the
comptroller of the city of Staten Island and the state comptroller or
other chief officer of a state pension system the amount of money
required to be contributed by such employees. The comptroller of the
city of Staten Island shall be authorized to provide for the withholding
or withhold the contribution of such employees and the payment of that
amount to the retirement system of the preceding municipality. The
amount so certified pursuant to this paragraph shall be the same as the
amounts required to be contributed for similarly situated city employees
by the preceding municipality and by employees of the preceding munici-
pality.
8. Health insurance coverage. Health insurance coverage for city of
Staten Island employees, persons retired from city of Staten Island
A. 10030 61
employment and dependents of such employees and retirees shall be
provided in accordance with the personnel and labor, health insurance
coverage for municipal employees, persons retired from municipal employ-
ment and dependents of such employees and retirees provisions of the
administrative code of the preceding municipality unless the duly recog-
nized public employee representative negotiates altered terms.
9. Quasi-public entities. Rights and benefits of employees currently
employed by public authorities, boards, corporations and other quasi-
public entities of the preceding municipality shall be preserved upon
any transfer of functions resulting from the establishment of the city
of Staten Island.
§ 3-005. Assistance to the city of Staten Island.
With the consent of any municipality, the city of Staten Island may
use agents, employees and facilities of such municipality, paying to the
municipality its agreed proportion of the compensation or costs.
§ 3-006. Provision of municipal services in the city of Staten Island.
During the transition period the mayor and comptroller of the city of
Staten Island and the mayor and comptroller of the preceding munici-
pality are authorized to enter into agreements as to the provision of
municipal services by the preceding municipality to the city of Staten
Island to be provided on or after the date of establishment of the city
of Staten Island and the terms and conditions thereof.
§ 3-007. Debt, property, obligations and other allocations.
1. (a) Proportion of debt to be assumed by the city of Staten Island.
The proportion of the debt of the preceding municipality which shall be
assumed by the city of Staten Island, as constituted by this act, shall
be determined in the following manner: The mayor and the comptroller of
the city of Staten Island, as representing the city of Staten Island and
the mayor and the comptroller of the preceding municipality, are hereby
authorized and empowered to agree if they can, as to the amount of the
debt of the preceding municipality, which should equitably and properly
be assumed by the city of Staten Island. If the mayor and the comp-
troller of the city of Staten Island and the mayor and the comptroller
of the preceding municipality shall be unable to agree within six months
after this section takes effect as to the proportion of said debt of the
preceding municipality to be assumed by the city of Staten Island, the
supreme court of the third judicial district shall have power to deter-
mine the proportion of said debt of the preceding municipality to be
assumed by the city of Staten Island, and to enforce such award, deci-
sion and determination as shall be made in an action to be brought by
and in the name of either of said parties not less than six months nor
more than one year after this section takes effect. Nothing herein
contained shall impair the obligation of any contract; and the property
and inhabitants of such part of the preceding municipality as is by this
act included within the city of Staten Island, shall continue liable to
the existing creditors of the said preceding municipality, in like
manner, as if this act had not been passed. But from and after the
taking effect of this section, the preceding municipality shall have no
power to issue any bond, obligation or other evidence of indebtedness
which shall bind or render liable the property or inhabitants of any
part of said municipality included within the city of Staten Island as
hereby constituted. The apportionment of the debt of the preceding muni-
cipality shall be determined according to the relative assessed valu-
ation of the real property included in, or remaining without the city of
Staten Island.
A. 10030 62
(b) Proportion of obligations other than debt to be assumed by the
city of Staten Island. The proportion of the obligations other than debt
of the preceding municipality which shall be assumed by the city of
Staten Island, as constituted by this act, shall be determined in the
following manner: The mayor and the comptroller of the city of Staten
Island, as representing the city of Staten Island and the mayor and the
comptroller of the preceding municipality, are hereby authorized and
empowered to agree if they can, as to the amount of the obligations
other than debt of the preceding municipality, which should equitably
and properly be assumed by the city of Staten Island. If the mayor and
the comptroller of the city of Staten Island and the mayor and the comp-
troller of the preceding municipality shall be unable to agree within
six months after this section takes effect as to the proportion of said
obligations other than debt of the preceding municipality to be assumed
by the city of Staten Island, the supreme court of the third judicial
district shall have power to determine the proportion of said obli-
gations other than debt of the preceding municipality to be assumed by
the city of Staten Island, and to enforce such award, decision and
determination as shall be made in an action to be brought by and in the
name of either of said parties not less than six months nor more than
one year after this section takes effect. Nothing herein contained shall
impair the obligation of any contract; and the property and inhabitants
of such part of the preceding municipality as is by this act included
within the city of Staten Island, shall continue liable to the existing
obligees of the said preceding municipality, in like manner, as if this
act had not been passed. But from and after the taking effect of this
section, the preceding municipality shall have no power to bind or
render liable the property or inhabitants of any part of said munici-
pality included within the city of Staten Island as hereby constituted.
(c) Disposition of real and personal property owned by or held in
trust for the preceding municipality. All the real property owned by the
preceding municipality and situated in that part of said municipality
included within the city of Staten Island, as constituted by this act,
is hereby vested in the said city of Staten Island and divested out of
the preceding municipality, and all of the real property owned by the
preceding municipality and situated elsewhere in said municipality is
hereby vested in the preceding municipality and divested out of the said
city of Staten Island. All of the property owned by the preceding muni-
cipality other than real property, including money, investments, securi-
ties on investments and money held in trust for the benefit of said
municipality, directly or indirectly, shall be divided between the
preceding municipality and the city of Staten Island, as constituted by
this act, and the proportion of the same to which each shall, in equity
and good conscience, be entitled to receive upon such division, shall be
ascertained and determined by agreement by and between the mayor and
comptroller of the preceding municipality, upon the one side, and the
mayor and the comptroller of the said city of Staten Island, upon the
other side, and in the case of their inability to agree upon such divi-
sion within six months after this section shall take effect, the supreme
court in the third judicial district is hereby empowered to divide the
same between them and to ascertain and award to each its equitable
proportion thereof, and to enforce its determination thereon, and either
of the said municipalities may institute and prosecute, in its own name,
an action in said court for that purpose after the expiration of six
months and before the expiration of one year after this section takes
effect.
A. 10030 63
(d) Documents. The preceding municipality shall provide the city of
Staten Island with all books, papers, documents and files held by such
municipality which apply primarily to the area of the city of Staten
Island and shall make available for copying by the city of Staten Island
any other books, papers, documents and files which such city shall
request as pertaining to such city in any other manner.
2. (a) Proportion of debt to be assumed by the city school district of
the city of Staten Island. The proportion of the debt of the city school
district of the preceding municipality which shall be assumed by the
city school district of the city of Staten Island, as constituted by
this act, shall be determined in the following manner: The board of
education of the city school district of the city of Staten Island and
the board of education of the city school district of the preceding
municipality, are hereby authorized and empowered to agree if they can,
as to the amount of the debt of the city school district of the preced-
ing municipality, which should equitably and properly be assumed by the
city school district of the city of Staten Island. If the board of
education of the city school district of the city of Staten Island and
the board of education of the city school district of the preceding
municipality shall be unable to agree within six months after this
section takes effect as to the proportion of said debt of the city
school district of the preceding municipality to be assumed by the city
school district of the city of Staten Island, the supreme court of the
third judicial district shall have power to determine the proportion of
said debt of the city school district of the preceding municipality to
be assumed by the city school district of the city of Staten Island, and
to enforce such award, decision and determination as shall be made in an
action to be brought by and in the name of either of said parties not
less than six months nor more than one year after this section takes
effect. Nothing herein contained shall impair the obligation of any
contract; and the property and inhabitants of such part of the city
school district of the preceding municipality as is by this act included
within the city school district of the city of Staten Island, shall
continue liable to the existing creditors of the city school district of
the said preceding municipality, in like manner, as if this act had not
been passed. But from and after the taking effect of this section, the
city school district of said preceding municipality shall have no power
to issue any bond, obligation or other evidence of indebtedness which
shall bind or render liable the property or inhabitants of any part of
the city school district of said municipality included within the city
school district of the city of Staten Island as hereby constituted. The
apportionment of the debt of the city school district of the preceding
municipality shall be determined according to the relative assessed
valuation of the real property included in, or remaining without the
city school district of the city of Staten Island.
(b) Disposition of real and personal property owned by or held in
trust for the city school district of the preceding municipality. All
the real property owned by the city school district of the preceding
municipality and situated in that part of the city school district of
said municipality included within the city school district of the city
of Staten Island, as constituted by this act, is hereby vested in the
city school district of the city of Staten Island and divested out of
the city school district of the preceding municipality, and all of the
real property owned by the city school district of the preceding munici-
pality and situated elsewhere in the city school district of the preced-
ing municipality is hereby vested in the city school district of the
A. 10030 64
preceding municipality and divested out of the city school district of
the city of Staten Island. All of the property owned by the city school
district of the preceding municipality other than real property, includ-
ing money, investments, securities on investments and money held in
trust for the benefit of the city school district of the preceding muni-
cipality, directly or indirectly, shall be divided between the city
school district of the preceding municipality and the city school
district of the city of Staten Island, as constituted by this act, and
the proportion of the same to which each shall, in equity and good
conscience, be entitled to receive upon such division, shall be ascer-
tained and determined by agreement by and between the board of education
of the city school district of the preceding municipality, upon the one
side, and the board of education of the city school district of the city
of Staten Island, upon the other side, and in the case of their inabili-
ty to agree upon such division within six months after this section
shall take effect, the supreme court in the third judicial district is
hereby empowered to divide the same between them and to ascertain and
award to each its equitable proportion thereof, and to enforce its
determination thereon, and either of the said school districts may
institute and prosecute, in its own name, an action in said court for
that purpose after the expiration of six months and before the expira-
tion of one year after this section takes effect.
(c) Documents. The city school district of the preceding municipality
shall provide the city school district of the city of Staten Island with
all books, papers, documents and files held by such school district
which apply primarily to the area of the city school district of the
city of Staten Island, including its property, faculty and students, and
shall make available for copying by the city school district of the city
of Staten Island any other books, papers, documents and files which the
city school district of the city of Staten Island shall request as
pertaining to the city school district of the city of Staten Island in
any other manner.
§ 3-008. Continuance of municipal services.
The preceding municipality shall be obligated to continue to maintain
during the transition period all municipal services and related equip-
ment and supplies at a level materially equivalent to that level of
municipal services and related equipment and supplies for the geograph-
ical area of the city of Staten Island as existing on the first of July
in the year in which this act shall have become a law subject to exist-
ing budget restraints of the preceding municipality.
§ 3-009. Powers of the city of Staten Island to adopt and amend local
laws.
Notwithstanding the provisions of any other law, the common council of
the city of Staten Island shall have the power to adopt local laws in
accordance with the provisions of section 10 of the municipal home rule
law; provided, however, that no such local law adopted during the tran-
sition period shall be effective until the date of establishment of the
city of Staten Island.
§ 3-010. Powers of the city of Staten Island relating to home rule
powers.
In accordance with the provisions of article IX of the constitution,
the city of Staten Island during the transition period shall have all of
the rights, powers, privileges and immunities granted to local govern-
ments with respect to the power of the legislature to act in relation to
the property or affairs of the city of Staten Island.
§ 4-001. City school district of the city of Staten Island.
A. 10030 65
1. The territory of the city of Staten Island in the county of Rich-
mond, on the date when this act shall take effect, shall be and is here-
by constituted a city school district, and shall be known as the city
school district of the city of Staten Island and shall have and enjoy
all the powers and duties of a city school district under the provisions
of the education law.
2. Such district shall be under the control of a board of education,
which shall be composed pursuant to the provisions of article 52 of the
education law.
§ 4-002. Section 2550 of the education law, as amended by chapter 65
of the laws of 1972, is amended to read as follows:
§ 2550. Application of article. This article shall apply to the city
school districts of the following cities only: New York, Buffalo,
Rochester, Syracuse, STATEN ISLAND and Yonkers.
§ 4-003. Section 2552 of the education law is amended by adding a new
subdivision e to read as follows:
E. CITY SCHOOL DISTRICT OF THE CITY OF STATEN ISLAND: NINE MEMBERS.
§ 4-004. Subdivisions 1, 2, 4, 5 and 6 of section 2553 of the educa-
tion law, subdivision 1 as separately amended by chapters 211 and 441 of
the laws of 1980, subdivisions 2, 4 and 5 as added by chapter 242 of the
laws of 1974 and subdivision 6 as amended by chapter 211 of the laws of
1980, are amended to read as follows:
1. No person shall be eligible to the office of member of a board of
education who is not a citizen of the United States, who is not quali-
fied to register for or vote at an election in accordance with the
provisions of section 5-106 of the election law, and who, in the case of
the city school district of the city of Yonkers, has not been a resident
of the city school district for which he OR SHE is chosen for a period
of at least three years immediately preceding the date of his OR HER
election or appointment and who, in the case of the city school district
of the city of Buffalo, in the case of a member to be elected at large
is not a qualified voter of such city school district and who has not
been a resident of such district for a period of at least three years
immediately preceding the date of his OR HER election and in the case of
a member elected from a city school subdistrict is not a qualified voter
of such city school subdistrict and has not been a resident of the city
school district for three years and a resident of the city school
subdistrict which he OR SHE represents or seeks to represent for a peri-
od of one year immediately preceding the date of his OR HER election,
and who, in the case of the city school district of the city of Roches-
ter, is not a qualified voter under section 5-102 of the election law of
such city school district; AND WHO, IN THE CASE OF THE CITY SCHOOL
DISTRICT OF THE CITY OF STATEN ISLAND HAS BEEN A QUALIFIED VOTER UNDER
SECTION 5-102 OF THE ELECTION LAW OF SUCH CITY SCHOOL DISTRICT FOR AT
LEAST NINETY DAYS IMMEDIATELY PRECEDING THE DATE OF HIS OR HER ELECTION
OR APPOINTMENT; and who in the case of the city school district of the
city of Syracuse has not been a qualified voter under section 5-102 of
the election law of such city school district for at least ninety days
immediately preceding the date of his OR HER election or appointment.
2. In the city school districts of the cities of Rochester and Syra-
cuse the members of such board of education shall be chosen by the
voters at large at either a general or municipal election, or at both.
IN THE CITY SCHOOL DISTRICT OF THE CITY OF STATEN ISLAND THE MEMBERS OF
SUCH BOARD OF EDUCATION SHALL BE CHOSEN PURSUANT TO THE PROVISIONS OF
SUBDIVISION ELEVEN OF THIS SECTION. In the city school district of the
A. 10030 66
city of Buffalo the members of such board of education shall be chosen
pursuant to the provisions of subdivision ten of this section.
4. In the city school districts of the following cities, the terms of
such members shall be as follows:
a. Rochester: Four Years;
b. Syracuse: Four Years;
c. Yonkers: Five Years; AND
D. STATEN ISLAND: THREE YEARS.
5. The terms of one-fifth of all the members of a board of education,
or of a fraction as close to one-fifth thereof as possible, shall expire
annually on the first Tuesday in May, except in the city school
districts of the cities of Buffalo, Rochester, STATEN ISLAND and Syra-
cuse.
6. If a vacancy occurs other than by expiration of term in the office
of a member of a board of education in a district in which such members
are elected at a general or municipal election, such vacancy shall be
filled by appointment by the mayor until the next general or municipal
election is held, and such vacancy shall then be filled at such election
for the unexpired portion of such term, except that in the city school
district of the city of Rochester any such vacancy shall be filled
pursuant to the provisions of subdivision nine of this section and
except further that any such vacancy on the board of education of the
city school district of the city of Buffalo shall be filled pursuant to
the provisions of subdivision ten of this section AND EXCEPT THAT ANY
VACANCY ON THE BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE
CITY OF STATEN ISLAND SHALL BE FILLED PURSUANT TO THE PROVISIONS OF
SUBDIVISION ELEVEN OF THIS SECTION.
§ 4-005. Section 2553 of the education law is amended by adding a new
subdivision 11 to read as follows:
11. A. THE MEMBERS OF THE BOARD OF EDUCATION OF THE CITY SCHOOL
DISTRICT OF THE CITY OF STATEN ISLAND SHALL BE ELECTED BY THE QUALIFIED
VOTERS OF SUCH CITY AS PROVIDED HEREIN.
B. THE MEMBERS OF THE BOARD OF EDUCATION SHALL BE ELECTED AT LARGE
THROUGHOUT THE CITY AS PROVIDED FOR IN THIS SUBDIVISION.
C. (1) EVERY REGISTERED VOTER RESIDING IN THE CITY SCHOOL DISTRICT OF
THE CITY OF STATEN ISLAND AND EVERY PARENT OF A CHILD OF SCHOOL AGE
UNDER THE JURISDICTION OF SUCH SCHOOL DISTRICT WHO IS A RESIDENT OF THE
CITY OF STATEN ISLAND FOR AT LEAST NINETY DAYS IMMEDIATELY PRECEDING
SUCH ELECTION AND AT LEAST EIGHTEEN YEARS OF AGE SHALL BE ELIGIBLE TO
VOTE AT SUCH ELECTION FOR MEMBERS OF THE BOARD OF EDUCATION.
(2) EACH CANDIDATE FOR MEMBER OF THE BOARD OF EDUCATION OF THE CITY
SCHOOL DISTRICT OF THE CITY OF STATEN ISLAND SHALL BE REQUIRED TO FILE
PETITIONS CONTAINING AT LEAST FIVE HUNDRED SIGNATURES. NO PETITION SHALL
CONTAIN ANY POLITICAL PARTY OR INDEPENDENT BODY NAME OR LABEL. EACH
PETITION SHALL CONTAIN THE NAME OF ONLY ONE CANDIDATE AND SUCH PETITION
SHALL BE FILED WITH THE CLERK OF THE BOARD OF ELECTIONS OF THE COUNTY OF
RICHMOND NOT EARLIER THAN THE FIFTH TUESDAY AND NOT LATER THAN THE
FOURTH TUESDAY PRECEDING THE DATE ON WHICH AN ELECTION SHALL BE HELD. A
CERTIFICATE OF ACCEPTANCE OR DECLINATION OF ANY INDIVIDUAL SO NOMINATED
SHALL BE FILED NOT LATER THAN THE THIRD DAY AFTER THE FOURTH TUESDAY
PRECEDING THE ELECTION.
D. NO PERSON SHALL BE ELIGIBLE FOR THE OFFICE OF MEMBER OF SUCH BOARD
OF EDUCATION WHO IS NOT A QUALIFIED VOTER UNDER SECTION 5-102 OF THE
ELECTION LAW OF SUCH CITY SCHOOL DISTRICT. NO PERSON SHALL HOLD AT THE
SAME TIME THE OFFICE OF MEMBER OF THE BOARD OF EDUCATION AND ANY OTHER
ELECTIVE OFFICE NOR SHALL ANY HOLDER OF AN ELECTIVE OFFICE BE A CANDI-
A. 10030 67
DATE FOR THE OFFICE OF MEMBER OF SUCH BOARD OF EDUCATION. NO EMPLOYEE OF
THE CITY SCHOOL DISTRICT OF THE CITY OF STATEN ISLAND SHALL BE A MEMBER
OF THE BOARD OF EDUCATION.
E. THE TERM OF OFFICE OF EACH MEMBER OF THE BOARD OF EDUCATION OF THE
CITY SCHOOL DISTRICT OF THE CITY OF STATEN ISLAND SHALL BE THREE YEARS.
VOTING WILL BE BY MEANS OF CUMULATIVE VOTING. EACH VOTER MAY CAST UP TO
NINE VOTES FOR THE CANDIDATE OR CANDIDATES OF HIS OR HER CHOICE BY CAST-
ING ALL OF HIS OR HER VOTES FOR A SINGLE CANDIDATE, BY CASTING ONE VOTE
FOR EACH OF NINE CANDIDATES, OR BY ALLOCATING ANY COMBINATION OF NINE
WHOLE VOTES AMONG THE CANDIDATES. THE MAXIMUM NUMBER OF VOTES EACH VOTER
MAY CAST SHALL NOT EXCEED NINE. NOTHING IN THIS PARAGRAPH REQUIRES THAT
A VOTER CAST MORE THAN ONE VOTE FOR ANY ONE CANDIDATE. THE NINE CANDI-
DATES RECEIVING THE GREATEST NUMBER OF VOTES CAST SHALL BE ELECTED.
F. (1) SUCH ELECTION FOR SUCH OFFICE SHALL BE GOVERNED BY THE
PROVISIONS OF THE ELECTION LAW IN THE SAME MANNER AS CANDIDATES FOR
OFFICE GENERALLY TO BE ELECTED BY THE VOTERS OF THE CITY OF STATEN
ISLAND EXCEPT, AS THE CASE MAY BE, AS TO THE DATE OF THE ELECTION; AND,
FURTHER PROVIDED, HOWEVER, THAT EACH SUCH CANDIDATE FOR ELECTION AS A
MEMBER OF SUCH BOARD OF EDUCATION SHALL BE REQUIRED TO FILE A PETITION
CONTAINING SIGNATURES OF AT LEAST FIVE HUNDRED VOTERS OF SUCH CITY
SCHOOL DISTRICT.
(2) FOR THE ELECTION HELD IN MAY, IN THE YEAR NEXT SUCCEEDING THE
DATE ON WHICH THIS SUBDIVISION SHALL HAVE BECOME A LAW, SUCH PETITION
SHALL BE DEEMED TO BE TIMELY FILED FOR SUCH ELECTION IF FILED WITH THE
CLERK OF THE BOARD OF ELECTIONS OF RICHMOND COUNTY ON OR BEFORE APRIL
NINTH, IN THE YEAR NEXT SUCCEEDING THE DATE ON WHICH THIS SUBDIVISION
SHALL HAVE BECOME A LAW. A PETITION SENT BY MAIL IN AN ENVELOPE POST-
MARKED PRIOR TO MIDNIGHT ON APRIL NINTH, IN THE YEAR NEXT SUCCEEDING THE
DATE ON WHICH THIS SUBDIVISION SHALL HAVE BECOME A LAW, SHALL BE DEEMED
TO BE TIMELY FILED WHEN RECEIVED. WRITTEN OBJECTION TO SUCH PETITION
SHALL BE FILED WITHIN TWO DAYS AFTER THE FINAL DATE FOR FILING OF SUCH
PETITION AND SPECIFICATIONS OF THE GROUNDS OF THE OBJECTIONS SHALL BE
FILED WITH THE BOARD WITHIN ONE DAY AFTER THE FILING OF THE OBJECTION
AND INSTITUTION OF COURT PROCEEDINGS RELATING THERETO SHALL BE COMMENCED
NOT LATER THAN MAY SECOND, IN THE YEAR NEXT SUCCEEDING THE DATE ON WHICH
THIS SUBDIVISION SHALL HAVE BECOME A LAW.
G. PETITIONS FOR THE NOMINATION OF MEMBERS OF SUCH SCHOOL BOARD SHALL
BE ON WHITE PAPER CONTAINING THE REQUIRED SIGNATURES OF QUALIFIED VOTERS
OF THE CITY OF STATEN ISLAND. THE SHEETS OF SUCH PETITION SHALL BE
NUMBERED CONSECUTIVELY, BEGINNING WITH NUMBER ONE, AT THE FOOT OF EACH
SHEET. SUCH A PETITION MUST SET FORTH IN EVERY INSTANCE THE CORRECT
DATE OF SIGNING, THE FULL NAME OF THE SIGNER AND HIS OR HER PRESENT
RESIDENCE. A SIGNER NEED NOT HIMSELF OR HERSELF FILL IN THE DATE OR
RESIDENCE.
H. EACH SHEET OF SUCH A PETITION SHALL BE SIGNED IN INK AND SHALL BE
SUBSTANTIALLY IN THE FOLLOWING FORM:
I, THE UNDERSIGNED, DO HEREBY STATE THAT I AM A DULY QUALIFIED VOTER
OF THE CITY OF STATEN ISLAND, THAT MY PRESENT PLACE OF RESIDENCE IS
TRULY STATED OPPOSITE MY SIGNATURE HERETO, I INTEND TO SUPPORT AT THE
ENSUING ELECTION AND I DO HEREBY NOMINATE THE FOLLOWING NAMED PERSON AS
A CANDIDATE FOR NOMINATION (FOR THE PUBLIC OFFICE OF MEMBER OF THE BOARD
OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF STATEN ISLAND AT
LARGE..............DAY OF....................,) (FOR THE CITY SCHOOL
DISTRICT.............DAY OF........,)
IN WITNESS WHEREOF, I HAVE HEREUNTO SET MY HAND THE DAY AND YEAR
PLACED OPPOSITE MY SIGNATURE.
A. 10030 68
ASSEMBLY ELECTION
DATE NAME OF SIGNER PRESENT RESIDENCE DISTRICT DISTRICT
....... ................ ............. ... ...
....... ................ ............. ... ...
....... ................ ............. ... ...
THE PETITION SHALL BE AUTHENTICATED BY WITNESSES. SUCH STATEMENT
SHALL BE ACCEPTED FOR ALL PURPOSES AS THE EQUIVALENT OF AN AFFIDAVIT,
AND IF FALSE SHALL SUBJECT THE WITNESS TO THE SAME PENALTIES AS IF
HE/SHE HAD BEEN DULY SWORN. THE FORM OF SUCH STATEMENT SHALL BE
SUBSTANTIALLY AS FOLLOWS:
STATEMENT OF WITNESS
I,...................., (NAME OF WITNESS), STATE: I AM A DULY QUALI-
FIED VOTER OF THE STATE OF NEW YORK, AND NOW RESIDE IN THE CITY, TOWN OR
VILLAGE OF..............., IN SUCH STATE, AT ................(FILL IN
STREET AND HOUSE NUMBER AND POST OFFICE) THEREIN. I KNOW EACH OF THE
VOTERS WHOSE NAMES ARE SUBSCRIBED TO THIS PETITION SHEET CONTAINING
(FILL IN NUMBER).............SIGNATURES AND EACH OF THEM SUBSCRIBED THE
SAME IN MY PRESENCE AND UPON SO SUBSCRIBING DECLARED TO ME THAT THE
FOREGOING STATEMENT, MADE AND SUBSCRIBED BY HIM/HER, WAS TRUE.
.....................
SIGNATURE OF WITNESS
DATE.......
I. THE BOARD OF ELECTIONS SHALL REFUSE TO ACCEPT SUCH PETITIONS
SIGNED BY AN INSUFFICIENT NUMBER OF QUALIFIED VOTERS, OR PETITIONS WHICH
ARE NOT TIMELY OR PETITIONS BEARING A POLITICAL PARTY OR INDEPENDENT
BODY, NAME OR EMBLEM OR WHICH CONTAIN THE NAME OF MORE THAN ONE CANDI-
DATE.
J. EXCEPT AS IT MAY BE MODIFIED BY THE PROVISIONS OF PARAGRAPH F OF
THIS SUBDIVISION, THE PROVISIONS OF THE ELECTION LAW WITH RESPECT TO
ACCEPTANCES BY CANDIDATES NOMINATED BY INDEPENDENT NOMINATING PETITIONS
SHALL APPLY TO CANDIDATES NOMINATED BY PETITIONS FOR MEMBERS OF SUCH
BOARD OF EDUCATION.
K. OBJECTIONS TO PETITIONS FOR THE NOMINATION OF MEMBERS OF SUCH
BOARD OF EDUCATION AND PROCEDURES AND REMEDIES APPLICABLE TO SUCH
OBJECTIONS SHALL BE THE SAME AS THOSE APPLICABLE TO INDEPENDENT NOMINAT-
ING PETITIONS UNDER THE ELECTION LAW, EXCEPT AS IT MAY BE MODIFIED BY
THE PROVISIONS OF PARAGRAPH D OF THIS SUBDIVISION.
L. THE BOARD OF ELECTIONS SHALL CAUSE TO BE PRINTED OFFICIAL BALLOTS
CONTAINING THE NAMES OF ALL CANDIDATES AS ABOVE PROVIDED, EXCEPT THAT
THE BOARD MAY REFUSE TO HAVE THE NAMES OF INELIGIBLE CANDIDATES PLACED
ON SUCH BALLOTS. THE NAMES OF THE CANDIDATES SHALL BE ARRANGED ACCORD-
ING TO LOT, AND SHALL NOT BEAR THE DESIGNATION OF ANY POLITICAL PARTY OR
INDEPENDENT BODY, NAME OR EMBLEM. BLANK SPACES SHALL BE PROVIDED SO
THAT VOTERS MAY VOTE FOR CANDIDATES WHO HAVE NOT BEEN NOMINATED FOR THE
OFFICES TO BE FILLED AT SUCH ELECTIONS. THE FORM OF SUCH BALLOTS SHALL
CONFORM SUBSTANTIALLY TO THE FORM OF BALLOTS USED AT GENERAL ELECTIONS
AS PRESCRIBED IN THE ELECTION LAW.
M. VOTING FOR THE ELECTION OF MEMBERS OF SUCH BOARD OF EDUCATION
SHALL BE BY VOTING MACHINE, IF PRACTICABLE, AND SHALL BE GOVERNED BY THE
APPLICABLE PROVISIONS OF THE ELECTION LAW WITH RESPECT TO VOTING
MACHINES.
N. IF A CANDIDATE, AFTER A PETITION IN HIS OR HER BEHALF SHALL HAVE
BEEN DULY FILED WITH THE CLERK OF THE BOARD OF ELECTIONS, AND PRIOR TO
THE DATE OF THE ELECTION, SHALL DECLINE TO ACCEPT THE NOMINATION, DIE,
A. 10030 69
REMOVE FROM THE SCHOOL DISTRICT, ACCEPT OR BE A CANDIDATE FOR ANOTHER
ELECTIVE OFFICE, OR BECOME OTHERWISE DISQUALIFIED FOR SUCH CITY SCHOOL
DISTRICT OFFICE, A FURTHER PETITION MAY BE FILED WITH SUCH CLERK, NOMI-
NATING ANOTHER CANDIDATE IN HIS OR HER PLACE AND STEAD. SUCH FURTHER
PETITION SHALL IN ALL RESPECTS COMPLY WITH THE PROVISIONS OF PARAGRAPHS
F, G AND I OF THIS SUBDIVISION, EXCEPT THAT IT MAY BE FILED AT ANY TIME
UP TO AND INCLUDING THE FIFTEENTH DAY PRECEDING THE DATE OF THE ELECTION
PURSUANT TO THE PROVISIONS OF THIS SUBDIVISION AND THE TIME WITHIN WHICH
TO ACCEPT OR OBJECT TO SUCH FURTHER PETITION SHALL BE COMPUTED FROM THE
DATE OF FILING OR SAID FIFTEENTH DAY, WHICHEVER IS EARLIER.
O. WHENEVER A VACANCY SHALL OCCUR OR EXIST IN THE OFFICE OF MEMBER OF
THE BOARD OF EDUCATION EXCEPT BY REASON OF EXPIRATION OF TERM OR
INCREASE IN THE NUMBER OF MEMBERS OF SUCH BOARD, THE CANDIDATE WHO HAS
RECEIVED THE NEXT HIGHEST TOTAL NUMBER OF VOTES IN THE PRECEDING SCHOOL
BOARD ELECTION AS CERTIFIED BY THE BOARD OF ELECTIONS SHALL BE SELECTED
TO FILL THE VACANCY. IN THE EVENT THAT NO CANDIDATE IS AVAILABLE, THEN
THE MAYOR OF THE CITY OF STATEN ISLAND SHALL APPOINT A PERSON TO FILL
THE VACANCY FOR THE REMAINDER OF THE UNEXPIRED TERM.
P. THE MEMBERS SO ELECTED TO THE BOARD OF EDUCATION SHALL CONVENE ON
THE FIRST BUSINESS DAY IN JULY OF EACH YEAR AT THE TIME OF THE COMMENCE-
MENT OF THEIR TERM OF OFFICE AND SELECT FROM THEIR MEMBERS A PRESIDENT
WHO SHALL SERVE FOR A TERM OF ONE YEAR OR SUCH OTHER TERM, NOT EXCEEDING
THE TERM OF HIS OR HER OFFICE, AS MAY BE FIXED BY THE RULES AND REGU-
LATIONS OF THE BOARD.
Q. THE ELECTION OF MEMBERS OF THE BOARD OF EDUCATION OF THE CITY
SCHOOL DISTRICT OF THE CITY OF STATEN ISLAND SHALL TAKE PLACE ON MAY
SECOND, TWO THOUSAND TWENTY-FIVE AND ON THE FIRST TUESDAY IN MAY EVERY
THIRD YEAR THEREAFTER. SUCH ELECTION SHALL BE CONDUCTED BY THE BOARD OF
ELECTIONS OF THE COUNTY OF RICHMOND IN THE SAME MANNER AS GENERAL
ELECTIONS ARE CONDUCTED BY IT.
R. POLLS SHALL BE OPEN FOR VOTING FOR THE HOURS PRESCRIBED BY SECTION
8-100 OF THE ELECTION LAW FOR PRIMARY ELECTIONS. THE RESULTS OF SUCH
ELECTIONS, AFTER CANVASSING, SHALL BE CERTIFIED AND REPORTED BY THE
BOARD OF ELECTIONS TO THE CITY CLERK AND THE BOARD OF EDUCATION OF SUCH
CITY.
§ 4-006. Subdivision 2 of section 2554 of the education law, as
amended by chapter 27 of the laws of 2012, is amended to read as
follows:
2. [To] EXCEPT AS PROVIDED IN SUBDIVISION ONE OF SECTION TWO THOUSAND
FIVE HUNDRED SEVENTY-THREE OF THIS ARTICLE, TO create, abolish, maintain
and consolidate such positions, divisions, boards or bureaus as, in its
judgment, may be necessary for the proper and efficient administration
of its work; to appoint a superintendent of schools, such associate,
assistant, district and other superintendents, examiners, directors,
supervisors, principals, teachers, lecturers, special instructors,
medical inspectors, nurses, auditors, attendance officers, secretaries,
clerks, custodians, janitors and other employees and other persons or
experts in educational, social or recreational work or in the business
management or direction of its affairs as said board shall determine
necessary for the efficient management of the schools and other educa-
tional, social, recreational and business activities; provided, however,
that in the city school districts of the cities of Buffalo, Rochester,
and Syracuse appointment of associate, assistant and district super-
intendents, and other supervising staff who are excluded from the right
to bargain collectively pursuant to article fourteen of the civil
service law shall, within the amounts budgeted for such positions, be by
A. 10030 70
the superintendent of such city school district; and to determine their
duties except as otherwise provided herein.
§ 4-007. Subdivision 8 of section 2554 of the education law, as
amended by chapter 576 of the laws of 1964, is amended to read as
follows:
8. To dispose of, in the city of New York AND THE CITY OF STATEN
ISLAND, to the best advantage of the city of New York OR THE CITY OF
STATEN ISLAND, either by sale or on the basis of money allowance for
waste paper all books delivered to the several public schools of such
city that have been discarded either by reason of being obsolete, no
longer required by the course of study, worn by long usage or mutilated
by accident. If disposal is made by sale it shall be to the highest
bidder and the money realized shall be paid into the city treasury and
shall at once be appropriated by the city to the special school fund of
the board of education entitled "supplies". If disposal is made on the
basis of money allowance for waste paper, it shall be to the highest
bidder. Such discarded books may be disposed of without public adver-
tisement or entry into a formal contract. Should the discarded books be
in such condition that no sale or exchange can be made, or should there
be reason to believe that such discarded books have become infected
through disease among the pupils, or should the superintendent of
schools certify that such discarded books contain erroneous, inaccurate,
obsolete or antiquated subject matter, illustrations, maps, charts or
other material, the committee on supplies of the board of education, if
such books cannot be sold, given away or otherwise salvaged as waste
paper without danger to the public health, may authorize their
destruction by fire, in which event the superintendent of school
supplies shall obtain and file in his office a certificate that such
books have been so destroyed, signed by the principal of the school in
which the books are located.
§ 4-008. Subdivision 14 of section 2554 of the education law, such
section as renumbered by chapter 762 of the laws of 1950, is amended to
read as follows:
14. To provide in the schools administered by the board of education
of the city of New York OR THE CITY OF STATEN ISLAND, the proper book or
books, in form as required by the by-laws of the board of education of
such city, in which it shall cause the class teachers under the direc-
tion and supervision of the principal to enter the names, ages and resi-
dences of the pupils attending the school, the name of the parent or
guardian of each pupil and the days on which the pupils shall have
attended respectively, and the aggregate attendance of each pupil during
the year, and also the day upon which the school shall have been visited
by the superintendent of schools or by an associate superintendent of
schools or by an assistant superintendent, or by members of the board of
education, or by members of the local school board, or by any of them,
which entry shall be verified by such oath or affirmation of the princi-
pal as may be prescribed by the board of education of such city. Such
books shall be preserved as the property of such board of education and
shall at all times be open to inspection by members of such board of
education, by members of the local school boards and by the superinten-
dent of schools, or by any associate superintendent of schools, or by
the assistant superintendents.
§ 4-009. Subdivision 15 of section 2554 of the education law is
amended by adding a new paragraph b-1 to read as follows:
B-1. IN THE CITY OF STATEN ISLAND, THE BOARD OF EDUCATION SHALL MAKE
RULES AND REGULATIONS FOR THE CONDUCT, OPERATION AND MAINTENANCE OF
A. 10030 71
EXTRA CLASSROOM ACTIVITIES AND FOR THE SAFEGUARDING, ACCOUNTING AND
AUDIT OF ALL MONEYS RECEIVED AND DERIVED THEREFROM. IN THE CASE OF ANY
EXTRA CLASSROOM ACTIVITY AS IT SHALL DEEM PROPER, AND NOTWITHSTANDING
THE PROVISIONS OF SECTION TWENTY-FIVE HUNDRED THIRTY OF THIS TITLE, IT
MAY DIRECT THAT THE MONEYS RECEIVED OR DERIVED FROM THE CONDUCT, OPERA-
TION OR MAINTENANCE OF SUCH AN EXTRA CLASSROOM ACTIVITY BE DEPOSITED
WITH THE CHIEF FISCAL OFFICER OF THE BOARD OF EDUCATION, WHO IN SUCH
EVENT SHALL BE THE TREASURER OF SUCH AN EXTRA CLASSROOM ACTIVITY, THE
MONEYS OF WHICH ARE REQUIRED TO BE SO DEPOSITED. IN THE PROCUREMENT OF
ARTICLES AND SERVICES FOR THE CONDUCT, OPERATION AND MAINTENANCE OF A
CAFETERIA OR RESTAURANT SERVICE, THE BOARD OF EDUCATION SHALL BE SUBJECT
TO THE PROVISIONS OF SUBDIVISION TEN OF SECTION TWENTY-FIVE HUNDRED
FIFTY-SIX OF THIS ARTICLE, EXCEPT THAT SAID BOARD OF EDUCATION NEED NOT
HAVE DULY ADVERTISED FOR ESTIMATES IN ORDER TO CONTRACT FOR SUCH ARTI-
CLES OR SERVICES IN AN AMOUNT EXCEEDING ONE THOUSAND DOLLARS. IN SUCH
CITY, THE BOARD OF EDUCATION SHALL ALSO HAVE POWER TO ASSIGN ANY OF ITS
OFFICERS OR EMPLOYEES TO PERFORM SUCH DUTIES AS IT MAY PRESCRIBE IN
CONNECTION WITH AN EXTRA CLASSROOM ACTIVITY AND TO DESIGNATE SUCH OF ITS
OFFICERS AND EMPLOYEES WHEN SO ASSIGNED FROM WHOM A BOND SHALL BE
REQUIRED FOR FAITHFUL PERFORMANCE OF THEIR DUTIES AND TO FIX THE SUM IN
WHICH EACH SUCH BOND SHALL BE GIVEN.
§ 4-010. Section 2554 of the education law is amended by adding two
new subdivisions 29 and 30 to read as follows:
29. TO ASSIGN, IN ITS DISCRETION, ONE OR MORE EMPLOYEES OF THE BOARD
IN THE CITY OF STATEN ISLAND TO SERVE AS TRIAL EXAMINER WITH POWER TO
CONDUCT INVESTIGATIONS AND HEARINGS ON BEHALF OF SUCH BOARD. EACH TRIAL
EXAMINER SHALL REPORT THE RESULT OF ANY SUCH INVESTIGATION OR HEARING TO
THE BOARD.
30. TO EMPLOY A SUPERINTENDENT OF THE CITY OF STATEN ISLAND SCHOOL
DISTRICT BY CONTRACT FOR A FOUR-YEAR TERM OF OFFICE, SUBJECT TO REMOVAL
FOR CAUSE, AT A SALARY TO BE FIXED WITHIN THE BUDGETARY ALLOCATION
THEREFOR.
§ 4-011. Subdivision 5 of section 2556 of the education law, as
amended by chapter 480 of the laws of 2014, is amended to read as
follows:
5. It shall be unlawful for a schoolhouse to be constructed in the
city of New York OR THE CITY OF STATEN ISLAND without an open-air play-
ground attached to or used in connection with the same. Existing play-
grounds shall not be sold, leased or transferred, or permanently author-
ized for other uses such as school building construction, renovation,
placement or storage of building materials for such work that would
eliminate the use of such playground space for outdoor recreational
activities unless a plan is established and implemented to provide suit-
able and adequate physical activities or space to accommodate the phys-
ical and recreational needs of the pupils of such building. The
provisions of this subdivision shall not apply to school construction or
renovation activities that occur on or require the use of such play-
grounds for a duration of no more than one year.
§ 4-012. Section 2556 of the education law is amended by adding a new
subdivision 6-a to read as follows:
6-A. AFTER A SITE HAS BEEN SELECTED AND PLANS AND SPECIFICATIONS FOR A
BUILDING THEREON HAVE BEEN APPROVED AS PROVIDED HEREIN, THE BOARD OF
EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF STATEN ISLAND MAY,
IN ITS DISCRETION, BY REGULATION DELIVER SUCH PLANS AND SPECIFICATIONS
TO THE COMMON COUNCIL OR OTHER LOCAL LEGISLATIVE BODY WHICH MAY THEREUP-
ON, IN ITS DISCRETION, AWARD A CONTRACT FOR THE ERECTION OF SUCH BUILD-
A. 10030 72
ING IN THE SAME MANNER AND IN ACCORDANCE WITH THE PROVISIONS OF LAW
REGULATING THE AWARDING OF CONTRACTS FOR THE CONSTRUCTION OF MUNICIPAL
BUILDINGS OF SUCH CITY.
§ 4-013. Section 2556 of the education law is amended by adding three
new subdivisions 10-b, 11-a and 13-a to read as follows:
10-B. IN THE CITY OF STATEN ISLAND IF THE SEVERAL PARTS OF THE WORK OR
LABOR TO BE DONE AND/OR THE SUPPLIES, MATERIALS AND EQUIPMENT TO BE
FURNISHED SHALL TOGETHER INVOLVE AN EXPENDITURE OF NOT MORE THAN TEN
THOUSAND DOLLARS, THE SAME MAY BE PROCURED IN COMPLIANCE WITH THE PROCE-
DURES ON CONTRACTING PROVIDED IN CHAPTER NINE OF THE CHARTER OF THE CITY
OF STATEN ISLAND.
11-A. IN ALL CONTRACTS BY THE BOARD OF EDUCATION OF THE CITY SCHOOL
DISTRICT OF THE CITY OF STATEN ISLAND, FOR THE CONSTRUCTION, REPAIR,
ALTERATION OR REMODELING OF BUILDINGS OR FOR THE PURCHASE OF SUPPLIES,
FURNITURE OR EQUIPMENT, A STIPULATION MAY BE INSERTED FOR LIQUIDATED
DAMAGES FOR ANY BREACH, FAILURE OR DELAY IN THE PERFORMANCE THEREOF; AND
SUCH BOARD OF EDUCATION IS AUTHORIZED AND EMPOWERED TO REMIT THE WHOLE
OR ANY PART OF SUCH DAMAGES AS IN ITS DISCRETION MAY BE JUST AND EQUITA-
BLE; AND IN ALL SUITS COMMENCED ON ANY SUCH CONTRACTS OR ON ANY BOND
GIVEN IN CONNECTION THEREWITH IT SHALL NOT BE NECESSARY FOR SUCH BOARD,
WHETHER PLAINTIFF OR DEFENDANT, TO PROVE ACTUAL OR SPECIFIC DAMAGES
SUSTAINED BY REASON OF ANY SUCH BREACH, FAILURE OR DELAY, BUT SUCH STIP-
ULATION FOR LIQUIDATED DAMAGES SHALL BE CONCLUSIVE AND BINDING UPON ALL
PARTIES.
13-A. THE BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY
OF STATEN ISLAND MAY THROUGH ITS DULY DESIGNATED OFFICERS, AGENTS OR
EMPLOYEES ENTER UPON PUBLIC OR PRIVATE PROPERTY FOR THE PURPOSE OF
MAKING SURVEYS, SOUNDINGS OR TEST BORINGS NECESSARY FOR THE EXERCISE OF
THE POWERS OR THE PERFORMANCE OF THE DUTIES, OF SUCH BOARD OF EDUCATION,
PROVIDED, HOWEVER, THAT THE MAYOR HAD FORMALLY APPROVED THE ACQUISITION
OF THE REAL PROPERTY AS A SCHOOL SITE.
§ 4-014. The education law is amended by adding three new sections
2560-a, 2561-a, and 2562-a to read as follows:
§ 2560-A. LIABILITY OF BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT
OF THE CITY OF STATEN ISLAND. 1. NOTWITHSTANDING ANY INCONSISTENT
PROVISION OF LAW, GENERAL, SPECIAL OR LOCAL, OR THE LIMITATION CONTAINED
IN THE PROVISIONS OF ANY CITY CHARTER, ANY DULY APPOINTED MEMBER OF THE
BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF STATEN
ISLAND, THE MEMBERS OF THE SCHOOL BOARD OF SUCH CITY, THE TEACHING OR
SUPERVISING STAFF, OFFICER, OR EMPLOYEE OF SUCH BOARD, MEMBER OF A
COMMITTEE ON SPECIAL EDUCATION OR SUBCOMMITTEE THEREOF OR AUTHORIZED
PARTICIPANT IN THE SCHOOL VOLUNTEER PROGRAM IN SUCH CITY SHALL BE ENTI-
TLED TO LEGAL REPRESENTATION AND INDEMNIFICATION PURSUANT TO THE
PROVISIONS OF, AND SUBJECT TO THE CONDITIONS, PROCEDURES AND LIMITATIONS
CONTAINED IN SECTION FIFTY-K OF THE GENERAL MUNICIPAL LAW, EXCEPT THAT
ANY JUDGMENT OR SETTLEMENT PURSUANT TO THIS SECTION SHALL BE PAYABLE
FROM THE MONEYS OF THE BOARD OF EDUCATION.
2. NOTWITHSTANDING ANY INCONSISTENT PROVISION OF LAW, GENERAL, SPECIAL
OR LOCAL, OR LIMITATIONS CONTAINED IN THE PROVISION OF ANY CITY CHARTER,
IT SHALL NOT BE WITHIN THE POWER OF THE BOARD OF EDUCATION OF THE CITY
OF STATEN ISLAND TO REQUIRE A VOLUNTEER PARTICIPATING IN ANY SCHOOL
ACTIVITIES TO EXECUTE A WAIVER OF RESPONSIBILITY IN FAVOR OF THAT BOARD
AS A CONDITION, EITHER EXPRESS OR IMPLIED, OF SUCH PARTICIPATION. SUCH
WAIVER WOULD INCLUDE, BUT NOT BE LIMITED TO, A RELEASE OF ANY PARTY
AGAINST WHOM THE VOLUNTEER MAY HAVE RIGHTS UNDER ANY EXISTING PROVISION
OF LAW FOR PERSONAL INJURIES INCURRED DURING THE PERFORMANCE OF AUTHOR-
A. 10030 73
IZED VOLUNTEER DUTIES BY AN AUTHORIZED PARTICIPANT IN A SCHOOL VOLUNTEER
PROGRAM.
§ 2561-A. LIABILITY OF CERTAIN OFFICERS AND EMPLOYEES OF THE BOARD OF
EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF STATEN ISLAND. IF,
IN ORDER TO FURNISH NEEDY CHILDREN OR MINORS WITH FOOD, SHOES, CLOTHING,
AND OTHER NECESSITIES TO ENABLE THEM TO ATTEND SCHOOL AS CONTEMPLATED BY
LAW AND TO BENEFIT FROM INSTRUCTION, SUCH BOARD OF EDUCATION SHALL HAVE
REQUIRED, IMPOSED OR PERMITTED, THE PERFORMANCE OF DUTIES BY ANY OF ITS
OFFICERS AND EMPLOYEES, BECAUSE OF WHICH IT BECAME NECESSARY OR EXPEDI-
ENT FOR ANY SUCH OFFICER OR EMPLOYEE TO ACT FOR SUCH BOARD OF EDUCATION,
OR TO ACT FOR OR IN COOPERATION WITH ANY OTHER AGENCY OF GOVERNMENT,
FEDERAL, STATE OR MUNICIPAL, THEN IRRESPECTIVE OF THE FACT THAT THE
AUTHORITY TO REQUIRE, IMPOSE OR PERMIT THE PERFORMANCE OF SUCH DUTIES
MAY NOT HAVE BEEN SPECIFICALLY CONFERRED UPON SAID BOARD OF EDUCATION BY
PROVISIONS OF THIS CHAPTER, SUCH BOARD OF EDUCATION SHALL BE LIABLE FOR
AND SHALL ASSUME LIABILITY TO THE EXTENT THAT IT SHALL SAVE HARMLESS ANY
SUCH OFFICERS OR EMPLOYEES FOR DAMAGES ARISING OUT OF THE NEGLIGENCE OF
ANY SUCH OFFICER OR EMPLOYEE WHILE ACTUALLY ENGAGED IN THE PERFORMANCE
OF SUCH REQUIRED OR PERMITTED DUTIES, PROVIDED THE OFFICER OR EMPLOYEE
AT THE TIME WAS ACTING WITHIN THE SCOPE OF HIS OR HER DUTIES OR EMPLOY-
MENT.
§ 2562-A. PRESENTATION OF CLAIMS AGAINST THE BOARD OF EDUCATION OF
THE CITY SCHOOL DISTRICT OF THE CITY OF STATEN ISLAND TO BE PLEADED. 1.
NO ACTION OR SPECIAL PROCEEDING, FOR ANY CAUSE WHATEVER, SHALL BE PROSE-
CUTED OR MAINTAINED AGAINST THE BOARD OF EDUCATION OF THE CITY SCHOOL
DISTRICT OF THE CITY OF STATEN ISLAND, UNLESS IT SHALL APPEAR BY AND AS
AN ALLEGATION IN THE COMPLAINT OR NECESSARY MOVING PAPERS THAT AT LEAST
THIRTY DAYS HAVE ELAPSED SINCE THE DEMAND, CLAIM OR CLAIMS UPON WHICH
SUCH ACTION OR SPECIAL PROCEEDING IS FOUNDED WERE PRESENTED TO THE SAID
BOARD OF EDUCATION FOR ADJUSTMENT, AND THAT THE OFFICER OR BODY HAVING
THE POWER TO ADJUST OR PAY SAID CLAIM HAS NEGLECTED OR REFUSED TO MAKE
AN ADJUSTMENT OR PAYMENT THEREOF FOR THIRTY DAYS AFTER SUCH PRESENTMENT.
2. THE SAID BOARD OF EDUCATION MAY REQUIRE ANY PERSON PRESENTING FOR
SETTLEMENT AN ACCOUNT OR CLAIM FOR ANY CAUSE WHATEVER AGAINST IT TO BE
SWORN BEFORE IT OR A COMMITTEE THEREOF, OR BEFORE THE AUDITOR, OR BEFORE
ANY PERSON DESIGNATED BY SAID BOARD, TOUCHING SUCH ACCOUNT OR CLAIM, AND
WHEN SO SWORN, TO ANSWER ORALLY AS TO ANY FACTS RELATIVE TO THE JUSTNESS
OF SUCH ACCOUNT OR CLAIM. A MEMBER OF THE BOARD, THE AUDITOR, OR ANY
OTHER PERSON DESIGNATED AS HEREINBEFORE STATED, SHALL HAVE THE POWER TO
ADMINISTER AN OATH TO ANY PERSON WHO SHALL GIVE TESTIMONY TO THE JUST-
NESS OF SUCH ACCOUNT OR CLAIM, AND FOR THE PURPOSE OF SECURING SUCH
TESTIMONY MAY ISSUE SUBPOENAS FOR THE ATTENDANCE OF WITNESSES. WILFUL
FALSE SWEARING BEFORE THE SAID BOARD OF EDUCATION, A COMMITTEE THEREOF,
THE AUDITOR, OR BEFORE ANY PERSON DESIGNATED AS HEREINBEFORE STATED, IS
PERJURY AND PUNISHABLE AS SUCH.
§ 4-015. Section 2566 of the education law is amended by adding a new
subdivision 3-a to read as follows:
3-A. IN THE CITY OF STATEN ISLAND, TO EXERCISE THE ADMINISTRATIVE AND
MINISTERIAL POWERS OF THE BOARD OF EDUCATION.
§ 4-016. The education law is amended by adding two new sections
2567-a and 2568-a to read as follows:
§ 2567-A. PROTECTION OF RIGHTS EXERCISED UNDER LICENSES ISSUED BY A
BOARD OF EDUCATION IN THE CITY OF STATEN ISLAND. NO PERSON SHALL
FORFEIT ANY RIGHT GIVEN TO HIM OR HER UNDER A LICENSE ISSUED BY SUCH
BOARD OF EDUCATION, PURSUANT TO THIS CHAPTER, BECAUSE OF ABSENCE WHILE
IN SERVICE IN THE ARMED FORCES OF THE UNITED STATES OR IN THE SERVICE OF
A. 10030 74
THE AMERICAN RED CROSS. ANY PERSON MAY AT ANY TIME WITHIN SIX MONTHS
AFTER HIS OR HER DISCHARGE FROM SERVICE IN THE ARMED FORCES OF THE
UNITED STATES OR THE AMERICAN RED CROSS MAKE APPLICATION TO THE LICENSE
ISSUING AUTHORITY BY AFFIDAVIT SETTING FORTH THAT HE OR SHE HAS BEEN IN
SERVICE IN THE ARMED FORCES OF THE UNITED STATES OR THE AMERICAN RED
CROSS AND HAS BEEN DISCHARGED FROM SUCH SERVICE AND THAT HE OR SHE
DESIRES THE LICENSE THERETOFORE ISSUED TO HIM OR TO HER TO BE REISSUED
AS OF THE DATE OF SUCH APPLICATION, AND IT SHALL BE THE DUTY OF THE
LICENSING AUTHORITY TO REINSTATE SUCH LICENSE AS OF THE DATE ON WHICH
APPLICATION IS MADE.
§ 2568-A. SUPERINTENDENT OF SCHOOLS AUTHORIZED TO REQUIRE MEDICAL
EXAMINATION OF CERTAIN EMPLOYEES OF THE BOARD OF EDUCATION OF THE CITY
SCHOOL DISTRICT OF THE CITY OF STATEN ISLAND. THE SUPERINTENDENT OF
SCHOOLS SHALL BE EMPOWERED TO REQUIRE ANY PERSON EMPLOYED BY THE BOARD
OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF STATEN ISLAND TO
SUBMIT TO A MEDICAL EXAMINATION BY A PHYSICIAN OR SCHOOL MEDICAL INSPEC-
TOR OF THE BOARD, IN ORDER TO DETERMINE THE MENTAL OR PHYSICAL CAPACITY
OF SUCH PERSON TO PERFORM HIS OR HER DUTIES, WHENEVER IT HAS BEEN RECOM-
MENDED IN A REPORT IN WRITING THAT SUCH EXAMINATION SHOULD BE MADE.
SUCH REPORT TO THE SUPERINTENDENT MAY BE MADE ONLY BY A PERSON UNDER
WHOSE SUPERVISION OR DIRECTION THE PERSON RECOMMENDED FOR SUCH MEDICAL
EXAMINATION IS EMPLOYED. THE PERSON REQUIRED TO SUBMIT TO SUCH MEDICAL
EXAMINATION SHALL BE ENTITLED TO BE ACCOMPANIED BY A PHYSICIAN OR OTHER
PERSON OF HIS OR HER OWN CHOICE. THE FINDINGS UPON SUCH EXAMINATION
SHALL BE REPORTED TO THE SUPERINTENDENT OF SCHOOLS AND MAY BE REFERRED
TO AND CONSIDERED FOR THE EVALUATION OF SERVICE OF THE PERSON EXAMINED
OR FOR DISABILITY RETIREMENT.
§ 4-017. Subdivision 1 of section 2573 of the education law, as
amended by section 3 of subpart D of part EE of chapter 56 of the laws
of 2015, subparagraph ii of paragraph (a) as amended by chapter 201 of
the laws of 2022 and subparagraph ii of paragraph (b) as amended by
chapter 345 of the laws of 2019, is amended to read as follows:
1. (a) i. [Teachers] EXCEPT AS OTHERWISE PROVIDED FOR IN PARAGRAPH (C)
OF THIS SUBDIVISION, TEACHERS and all other members of the teaching
staff, appointed prior to July first, two thousand fifteen and author-
ized by section twenty-five hundred fifty-four of this article, shall be
appointed by the board of education, upon the recommendation of the
superintendent of schools, for a probationary period of three years,
except that in the case of a teacher who has rendered satisfactory
service as a regular substitute for a period of two years or as a
seasonally licensed per session teacher of swimming in day schools who
has served in that capacity for a period of two years and has been
appointed to teach the same subject in day schools on an annual salary,
the probationary period shall be limited to one year; provided, however,
that in the case of a teacher who has been appointed on tenure in anoth-
er school district within the state, the school district where currently
employed, or a board of cooperative educational services, and who was
not dismissed from such district or board as a result of charges brought
pursuant to subdivision one of section three thousand twenty-a or
section three thousand twenty-b of this chapter, the probationary period
shall not exceed two years; provided, however, that in cities with a
population of one million or more, a teacher appointed under a newly
created license, for teachers of reading and of the emotionally hand-
icapped, to a position which the teacher has held for at least two years
prior to such appointment while serving on tenure in another license
area who was not dismissed as a result of charges brought pursuant to
A. 10030 75
subdivision one of section three thousand twenty-a or section three
thousand twenty-b of this chapter, the probationary period shall be one
year. The service of a person appointed to any of such positions may be
discontinued at any time during such probationary period, on the recom-
mendation of the superintendent of schools, by a majority vote of the
board of education. Each person who is not to be recommended for
appointment on tenure shall be so notified by the superintendent of
schools in writing not later than sixty days immediately preceding the
expiration of his or her probationary period. In city school districts
having a population of four hundred thousand or more, persons with
licenses obtained as a result of examinations announced subsequent to
the twenty-second day of May, nineteen hundred sixty-nine appointed upon
conditions that all announced requirements for the position be fulfilled
within a specified period of time, shall not acquire tenure unless and
until such requirements have been completed within the time specified
for the fulfillment of such requirements, notwithstanding the expiration
of any probationary period. In all other city school districts subject
to the provisions of this article, failure to maintain certification as
required by this article and by the regulations of the commissioner
shall be cause for removal within the meaning of subdivision five of
this section.
ii. [Teachers] EXCEPT AS OTHERWISE PROVIDED FOR IN PARAGRAPH (C) OF
THIS SUBDIVISION, TEACHERS and all other members of the teaching staff
appointed on or after July first, two thousand fifteen and authorized by
section twenty-five hundred fifty-four of this article, shall be
appointed by the board of education, upon the recommendation of the
superintendent of schools, for a probationary period of four years,
except that in the case of a teacher who has rendered satisfactory
service as a regular substitute for a period of two years and, if a
classroom teacher, has received annual professional performance review
ratings in each of those years, or has rendered satisfactory service as
a seasonally licensed per session teacher of swimming in day schools who
has served in that capacity for a period of two years and has been
appointed to teach the same subject in day schools on an annual salary,
the teacher shall be appointed for a probationary period of two years;
provided, however, that in the case of a teacher who has been appointed
on tenure in another school district within the state, the school
district where currently employed, or a board of cooperative educational
services, and who was not dismissed from such district or board as a
result of charges brought pursuant to subdivision one of section three
thousand twenty-a or section three thousand twenty-b of this chapter,
the teacher shall be appointed for a probationary period of three years;
provided that, in the case of a classroom teacher, the teacher demon-
strates that he or she received an annual professional performance
review rating pursuant to section three thousand twelve-c or section
three thousand twelve-d of this chapter in his or her final year of
service in such other school district or board of cooperative educa-
tional services; provided, however, that, in the case of a classroom
teacher who has been appointed for a probationary period during the two
thousand twenty--two thousand twenty-one, the two thousand twenty-one--
two thousand twenty-two or the two thousand twenty-two--two thousand
twenty-three school year and who has been appointed on tenure in another
school district within the state, the school district where currently
employed, board of cooperative educational services or state school for
the blind or deaf, and who was not dismissed from such district, board
or state school for the blind or deaf as a result of charges brought
A. 10030 76
pursuant to section three thousand twenty-a or section three thousand
twenty-b of this chapter, such teacher shall be appointed for a proba-
tionary period of three years; provided that, in the case of a classroom
teacher, such teacher demonstrates that he or she received an annual
professional performance review rating pursuant to section three thou-
sand twelve-c or section three thousand twelve-d of this chapter in the
two thousand seventeen--two thousand eighteen or two thousand eighteen-
-two thousand nineteen school year in such other school district, board
of cooperative educational services or state school for the blind or
deaf; provided further, however, that in cities with a population of one
million or more, a teacher appointed under a newly created license, for
teachers of reading and of the emotionally handicapped, to a position
which the teacher has held for at least two years prior to such appoint-
ment while serving on tenure in another license area who was not
dismissed as a result of charges brought pursuant to subdivision one of
section three thousand twenty-a or section three thousand twenty-b of
this chapter, the teacher shall be appointed for a probationary period
of two years. The service of a person appointed to any of such posi-
tions may be discontinued at any time during such probationary period,
on the recommendation of the superintendent of schools, by a majority
vote of the board of education. Each person who is not to be recommended
for appointment on tenure shall be so notified by the superintendent of
schools in writing not later than sixty days immediately preceding the
expiration of his or her probationary period. In all city school
districts subject to the provisions of this article, failure to maintain
certification as required by this article and by the regulations of the
commissioner shall be cause for removal within the meaning of subdivi-
sion five of this section.
(b) i. [Administrators] EXCEPT AS OTHERWISE PROVIDED FOR IN PARAGRAPH
(C) OF THIS SUBDIVISION, ADMINISTRATORS, directors, supervisors, princi-
pals and all other members of the supervising staff, except executive
directors, associate, assistant, district and community superintendents
and examiners, appointed prior to July first, two thousand fifteen and
authorized by section twenty-five hundred fifty-four of this article,
shall be appointed by the board of education, upon the recommendation of
the superintendent or chancellor of schools, for a probationary period
of three years. The service of a person appointed to any of such posi-
tions may be discontinued at any time during the probationary period on
the recommendation of the superintendent of schools, by a majority vote
of the board of education.
ii. [Administrators] EXCEPT AS OTHERWISE PROVIDED FOR IN PARAGRAPH (C)
OF THIS SUBDIVISION, ADMINISTRATORS, directors, supervisors, principals
and all other members of the supervising staff, except executive direc-
tors, associate, assistant, district and community superintendents and
examiners, appointed on or after July first, two thousand fifteen and
authorized by section twenty-five hundred fifty-four of this article,
shall be appointed by the board of education, upon the recommendation of
the superintendent or chancellor of schools, for a probationary period
of four years provided that such probationary period may be extended in
accordance with paragraph (b) of subdivision five of this section;
provided, however, that in the case of a principal, administrator,
supervisor, or other member of the supervising staff who has been
appointed on tenure pursuant to this chapter as an administrator within
an authorized administrative tenure area in another school district
within the state, the school district where currently employed, or a
board of cooperative educational services, and who was not dismissed
A. 10030 77
from such district or board as a result of charges brought pursuant to
subdivision one of section three thousand twenty-a or section three
thousand twenty-b of this chapter, the principal, administrator, super-
visor or other member of the supervising staff shall be appointed for a
probationary period of three years. The service of a person appointed to
any of such positions may be discontinued at any time during the proba-
tionary period on the recommendation of the superintendent of schools,
by a majority vote of the board of education.
(C) NOTWITHSTANDING THE PROVISIONS OF PARAGRAPHS (A) AND (B) OF THIS
SUBDIVISION, THE SUPERINTENDENT OF THE CITY SCHOOL DISTRICT OF THE CITY
OF STATEN ISLAND SHALL HAVE THE AUTHORITY TO APPOINT, WITH THE APPROVAL
OF THE SCHOOL BOARD, PRINCIPALS AND CITY WIDE ADMINISTRATORS. SUCH
SUPERINTENDENT MAY APPOINT ASSISTANT PRINCIPALS AND OTHER CLERICAL AND
ADMINISTRATIVE STAFF WITHOUT THE APPROVAL OF THE SCHOOL BOARD. SUCH
ASSISTANT PRINCIPALS, CLERICAL AND ADMINISTRATIVE STAFF SHALL SERVE IN
ACCORDANCE WITH THE PROVISIONS OF PARAGRAPHS (A) AND (B) OF THIS SUBDI-
VISION.
§ 4-018. Section 2576 of the education law is amended by adding a new
subdivision 4-a to read as follows:
4-A. IN THE CITY OF STATEN ISLAND SUCH ESTIMATE SHALL BE FILED WITH
THE OFFICER AUTHORIZED TO RECEIVE OTHER DEPARTMENT ESTIMATES AND THE
SAME ACTED ON BY SUCH OFFICER AND BY THE COMMON COUNCIL OF SUCH CITY IN
THE SAME MANNER AND WITH THE SAME EFFECT AS OTHER DEPARTMENT ESTIMATES.
THE COMMON COUNCIL IS ALSO AUTHORIZED, IN ITS DISCRETION, TO INCLUDE IN
SUCH BUDGET A SUM FOR ANY OF THE PURPOSES ENUMERATED IN PARAGRAPH C OF
SUBDIVISION ONE OF THIS SECTION, AND ANY FURTHER AMOUNT FOR SUCH
PURPOSES AS MAY BE AUTHORIZED BY A TAX ELECTION HELD IN SUCH CITY PURSU-
ANT TO THE PROVISIONS OF THIS CHAPTER. AFTER THE ADOPTION OF SUCH BUDGET
THE COMMON COUNCIL SHALL CAUSE THE AMOUNT THEREOF TO BE INCLUDED IN THE
TAX AND ASSESSMENT ROLL OF THE CITY AND THE SAME SHALL BE COLLECTED IN
THE SAME MANNER AND AT THE SAME TIME AS OTHER TAXES OF THE CITY ARE
COLLECTED, AND PLACED TO THE CREDIT OF THE BOARD OF EDUCATION OF THE
CITY SCHOOL DISTRICT OF SUCH CITY.
§ 4-019. Section 2579 of the education law is amended by adding a new
subdivision 4 to read as follows:
4. IF THE CITY OF STATEN ISLAND SHALL ISSUE OBLIGATIONS TO DEFRAY, IN
WHOLE OR IN PART, THE EXPENSE OF THE CONSTRUCTION, IMPROVEMENT AND
EQUIPMENT OF SCHOOL BUILDINGS OR THE PURCHASE OR ACQUISITION OF SCHOOL
SITES, THE PROCEEDS OF THE SALE OF SUCH BONDS SHALL BE PAID INTO THE
TREASURY OF THE CITY AND PLACED TO THE CREDIT OF THE BOARD OF EDUCATION
OF THE CITY SCHOOL DISTRICT OF SUCH CITY. AS SUCH OBLIGATIONS BECOME
DUE THE MUNICIPAL AUTHORITIES OF THE CITY SHALL INCLUDE IN THE TAX LEVY,
AND ASSESS UPON THE PROPERTY OF THE CITY, THE AMOUNT NECESSARY TO PAY
SUCH BONDS AND INTEREST THEREON.
§ 4-020. Additional transitory provisions relating to the city school
district of the city of Staten Island. 1. The board of education of the
city school district of the city of Staten Island shall possess those
powers and duties as are authorized for a city school district pursuant
to article 52 of the education law, as amended by this act. In further-
ance of such powers and duties the board shall confer with the mayor,
the comptroller and the common council of the city of Staten Island and
the board of education of the preceding municipality for the purpose of
preparing for submission and implementation of a budget for the school
year commencing on the first of July in the second year next succeeding
the date on which this act shall have become a law and to take such
other actions as may be necessary and appropriate to provide for the
A. 10030 78
operation of the city school district of the city of Staten Island on
and after the date of establishment of the city of Staten Island.
2. Fiscal and regulatory authority pertaining to the public schools to
be contained within the city school district of the city of Staten
Island shall remain with the board of education of the city school
district of the preceding municipality until the date of establishment
of the city of Staten Island.
3. All employees of the board of education of the city school district
of the preceding municipality and such other employees of any other
public entity as may be transferred pursuant to the provisions of this
act shall retain all rights, privileges, benefits and salaries to which
the employee was previously entitled as an employee of the board of
education of the preceding municipality. Transfers of employment to the
city school district of the city of Staten Island shall be conducted in
the same manner as is provided by for the city of Staten Island as
provided in this act. Such employees shall not suffer a loss of employ-
ment by reason of such transfer within a period of three years from the
effective date of such transfer nor shall any such employees be subject
to any additional employment probationary period by reason of such
transfer.
4. During the transition period as defined in section 1-003 of this
act, the city school district of the city of Staten Island may retain
the services of a superintendent of schools, a chief financial officer
and such other staff as to which funding shall have been provided by the
mayor and the common council of the city of Staten Island.
5. All actions deemed necessary and proper to implement the provisions
of sections 4-001 through 4-019 of this act are hereby authorized.
§ 5-001. Transfer of the college of Staten Island. 1. The legislature
finds that due to the establishment of the city of Staten Island, the
transfer of the college of Staten Island from the city university of New
York to the state university of New York is a public purpose. Such
transfer shall not affect the title to the real property of the college
of Staten Island which shall continue to be held by the state of New
York, except that notwithstanding the provisions of paragraph b of
subdivision 1 of section 6219 of the education law if such real property
ceases to be used for college purposes, title to such property shall
revert to the city of Staten Island as successor in interest to the
prior municipal government of the geographical area of Staten Island.
The college of Staten Island is hereby transferred to the state univer-
sity of New York. Such transfers shall include all furnishings, equip-
ment, records and all other property normally allocated to the college
of Staten Island by the city university of New York.
2. The college of Staten Island is hereby transferred from the city
university of New York to the state university of New York. The college
of Staten Island shall continue to offer a full range of baccalaureate
degree programs and associate degree programs, selected masters degree
programs and provide faculty participation in research and doctoral
programs at the graduate center of the city university of New York. The
city of Staten Island shall serve as local sponsor for the two year
component of the college of Staten Island and such component shall be
subject to the provisions of section 6304 of the education law. Such two
year component shall be a part of the state university of New York and
shall not be governed by a community college board of trustees.
3. (a) Whenever the term "city university of New York" is referred to
or designated in any law, general, special or local, contract, lease,
judgment, decision or document pertaining to the functions, powers and
A. 10030 79
duties relating to the college of Staten Island hereby continued in,
transferred and assigned to, or devolved upon, the state university of
New York, such reference or designation shall be deemed to refer to and
include the state university of New York, so far as such law, contract,
lease, judgment, decision or document pertains to matters which are
within its jurisdiction by reason of the redesignation, continuation,
transfer, assignment and devolution of functions, powers and duties made
by this act.
(b) All contracts, leases and other agreements entered into by the
city university of New York relating to the college of Staten Island
before the effective date of this section shall be conducted and
completed by the state university of New York in the same manner and
under the same terms and conditions and with the same effect as if the
same had been conducted and completed by the state university of New
York. In addition, any contracts, leases and other agreements entered
into by the state university of New York prior to the effective date of
this section shall remain in full force and effect and shall be
conducted and completed by the state university of New York.
(c) All rights, title and interest in personal property used for
educational or administrative purposes of the college of Staten Island
of the city university of New York vested in the city university of New
York on the effective date of this section are hereby transferred,
assigned and devolved upon the state university of New York.
(d) No existing right or remedy of any character shall be lost,
impaired or affected, nor shall any new right or remedy of any character
accrue to or for the benefit of any person by reason of the transfer of
the college of Staten Island pursuant to the provisions of this act.
(e) No action or proceeding based upon a cause of action which arose
prior to the effective date of this section brought by or against the
board of trustees of the city university of New York, the city universi-
ty construction fund, the board of trustees of the state university of
New York or the college of Staten Island shall be affected by any
provision of this act.
(f) Any lease entered into by the city university of New York for the
purposes of the college of Staten Island before the effective date of
this section is hereby transferred, assigned and devolved upon the state
university of New York, notwithstanding any provision that may be
contained therein providing for the nonassignability of such lease and
any such provision shall be deemed to be void as against the public
policy of the state and of no force and effect.
4. A council for the college of Staten Island is hereby established
pursuant to section 356 of the education law. It shall consist of ten
members, nine of whom shall be appointed by the governor and one of whom
shall be elected by and from among the students of the institution. Such
voting members shall be subject to every provision of any general,
special or local law, ordinance, charter, code, rule or regulation
applying to the voting members of such board with respect to the
discharge of their duties including, but not limited to those provisions
setting forth codes of ethics, disclosure requirements and prohibiting
business and professional activities. The election of the student member
shall be conducted in accordance with rules and regulations promulgated
by the respective representative campus student association in accord-
ance with guidelines established by the state university trustees. One
member shall be designated by the governor as chairman. Vacancies shall
be filled for the unexpired term in the same manner as original
selections. The term of office for each council member shall be seven
A. 10030 80
years. The term of office for the student member shall be one year. In
the event the student member ceases to be a student at the institution
such member shall be required to resign. Members appointed by the gover-
nor may be removed by the governor. Members elected by the students of
the institution may be removed by such students in accordance with rules
and regulations promulgated by the respective representative campus
student association in accordance with guidelines promulgated by the
state university trustees. Members of such council shall receive no
compensation for their services but shall be reimbursed for the expenses
actually and necessarily incurred by them in the performance of their
duties hereunder.
5. All employees of the college of Staten Island of the city universi-
ty of New York shall be transferred to employment in the state universi-
ty of New York and shall retain all rights, privileges, benefits and
salaries to which the employee was previously entitled as an employee of
the city university of New York.
Employees of the college of Staten Island of the city university of
New York transferred to employment in the state university of New York
pursuant to the provisions of this act shall not be involuntarily
assigned to work outside the geographical boundaries of the city of
Staten Island nor shall any such employees suffer a loss of employment
by reason of such transfer within a period of three years from the
effective date of such transfer nor shall any such employees be subject
to any additional employment probationary period by reason of their
transfer.
Employees transferred from the college of Staten Island of the city
university of New York to employment in the state university of New
York except for those designated managerial or confidential shall be
included in employer - employee negotiating units comparable to existing
units in the city university of the city of New York. With respect to
employees to be placed in such negotiating units, the public employee
organization recognized or certified to represent the employees in
comparable city university of the city of New York negotiating units
shall be recognized as the unit representative.
All rights, privileges and benefits provided by collectively bargained
agreements to employees of the city university of the city of New York
shall be continued for such employees transferred, reappointed or other-
wise employed until such time as successor collective bargaining agree-
ments are negotiated.
The state university of New York shall consult and bargain on all
terms and conditions of employment with the appropriate public employee
organization with respect to the establishment of any new titles which
are similar to or reasonably related to titles already represented by
such public employee organizations in the city university of the city of
New York.
Any such titles for which terms and conditions are bargained pursuant
to this subdivision shall be deemed to be successor titles within the
meaning of applicable law. So long as the responsibilities of employees
in these titles are reasonably related to the responsibilities of
employees currently represented by public employee organizations, such
titles shall be accredited or placed in a negotiating unit represented
by such public employee organizations.
If a dispute arises, the office of collective bargaining shall deter-
mine which public employee organization is appropriate to represent
transferees, other hires, or employees in a new title on the basis of
A. 10030 81
the title's community of interest with titles in the state university of
New York and the city university of the city of New York.
No existing right or remedy of any character shall be lost or impaired
or affected by reason of the adoption of this charter.
6. On and after the first of July in the second year next succeeding
the date on which this act shall have become a law, officers and employ-
ees who become employees of the state pursuant to this act shall become
members of the New York state employees' retirement system to the extent
permitted or required by the provisions of the retirement and social
security law, except that any employee who is a member of the New York
city employees' retirement system may elect to continue membership in
the New York city employees' retirement system. Any election pursuant to
this section shall be made no later than the one hundred twentieth day
after the effective date of this section, by filing a written notice
thereof with the administrative head of the New York state employees'
retirement system and the New York city employees' retirement system
and, once made and filed, shall be irrevocable. Upon the retirement of
an employee who has made such an election, the calculation of final
average salary by the New York city employees' retirement system shall
be performed as if the salary earned as a state employee on and after
such effective date were earned in New York city employment. In the case
of an employee who becomes a member of the New York state employees'
retirement system pursuant to this section, the New York city employees'
retirement system shall make a transfer of reserves, contributions and
credits to the New York state employees' retirement system, in the
manner required by section 43 of the retirement and social security law.
The comptroller of the city of New York shall certify to the state
administrator the amount of money required to be paid by the state of
New York for pension costs resulting from elections made pursuant to
this section. The comptroller of the state of New York shall pay to the
New York city employees' retirement system, upon approval by the state
administrator, the amounts so certified by the comptroller of the city
of New York. The comptroller of the city of New York shall also certify
to the state administrator the amount of money required to be contrib-
uted by each of such employees. The comptroller of the state of New
York shall be authorized to withhold the contributions of such employees
and pay that amount to the New York city employees' retirement system.
The amount so certified shall be the same as the amounts required to be
contributed for similarly situated city employees by the city of New
York and by employees of the city of New York.
§ 5-002. Subdivision 3 of section 352 of the education law, as amended
by chapter 13 of the laws of 2021, is amended to read as follows:
3. The state university shall consist of the four university centers
at Albany, Binghamton, Buffalo and Stony Brook, the designated colleges
of arts and sciences at Brockport, Buffalo, Cortland, Fredonia, Geneseo,
New Paltz, Old Westbury, Oneonta, Oswego, Plattsburgh, Potsdam [and],
Purchase AND STATEN ISLAND, empire state college, the agricultural and
technical colleges at Alfred, Canton, Cobleskill, Delhi, Farmingdale and
Morrisville, downstate medical center, upstate medical center, the
college of optometry, the college of environmental science and forestry,
maritime college, the college of technology at Utica/Rome, the statutory
or contract colleges at Cornell university and Alfred university, and
such additional universities, colleges and other institutions, facili-
ties and research centers as have been or hereafter may be acquired,
established, operated or contracted to be operated for the state by the
state university trustees.
A. 10030 82
§ 5-003. Paragraphs (f) and (g) of subdivision 2 and paragraph (d) of
subdivision 3 of section 6204 of the education law, paragraph (f) of
subdivision 2 as amended by chapter 306 and paragraph (g) of subdivision
2 as added by chapter 305 of the laws of 1979, and paragraph (d) of
subdivision 3 as amended by chapter 98 of the laws of 2010, are amended
to read as follows:
(f) The five trustees appointed by the mayor shall include at least
one resident of each of the [five] boroughs of the city of New York.
(g) The trustees appointed by the governor shall include at least one
resident of each of the [five] boroughs of the city of New York.
(d) (i) The board of trustees shall hold at least one public hearing
each year in each of the [five] boroughs of the city of New York. The
purpose of such hearing shall be to receive testimony and statements
from concerned individuals about university issues.
(ii) The board of trustees shall fix the time, place, duration and
format of each hearing.
(iii) At least thirty days notice of the hearing shall be given by the
chairperson of the board of trustees to all of the trustees, to all
presidents of educational units, to the chair of faculty-senate bodies
of educational units, to all student government presidents of educa-
tional units, to the borough president, the members of the city council,
the members of the board of estimate, the local community boards of the
borough where the hearing is to be held and to the media. The notice
shall contain the time, place and date of the public hearing. Such
information shall be made electronically available on the city universi-
ty of New York website. Any such meeting of the board of trustees shall
be conducted in accordance with article seven of the public officers
law.
(iv) At least three trustees shall attend each hearing.
§ 6-001. The judiciary law is amended by adding a new article 5-C to
read as follows:
ARTICLE 5-C
INTERIM COURT STRUCTURE FOR THE CITY OF STATEN ISLAND
SECTION 178. DECLARATION OF LEGISLATIVE FINDINGS AND INTENT.
178-A. CONTINUATION OF COURT PROCEEDINGS.
178-B. JUDICIAL TRANSITION.
178-C. JUDICIARY JURISDICTION.
178-D. JUDICIARY; FAMILY COURT.
178-E. JUDICIARY; CRIMINAL COURT.
178-F. JUDICIARY; CIVIL COURT.
178-G. JUDICIAL TRANSITION; STRUCTURE.
178-H. UNIFIED COURT SYSTEM; SERVICES.
178-I. JUDICIAL TRANSITION SERVICES.
178-J. EFFECT OF EXISTING COLLECTIVE BARGAINING AGREEMENTS.
§ 178. DECLARATION OF LEGISLATIVE FINDINGS AND INTENT. THE INTERIM
COURT STRUCTURE ESTABLISHED FOR THE CITY OF STATEN ISLAND BY THIS ARTI-
CLE IS BEING ENACTED IN THE EXERCISE OF THE LEGISLATURE'S CONSTITUTIONAL
AUTHORITY TO PROVIDE FOR THE CREATION AND ORGANIZATION OF UNITS OF LOCAL
GOVERNMENT. THE LEGISLATURE FINDS THAT IT IS NOT POSSIBLE TO CREATE,
FUND AND STAFF A NEW AND JURISDICTIONALLY DISTINCT COURT STRUCTURE FOR
THE CITY OF STATEN ISLAND WHICH WOULD BE FULLY OPERATIONAL ON THE EFFEC-
TIVE DATE OF SUCH CITY'S INCORPORATION. THE LEGISLATURE ALSO FINDS THAT
THE CREATION OF A JURISDICTIONALLY DISTINCT COURT STRUCTURE FOR THE CITY
OF STATEN ISLAND WOULD LIKELY DISRUPT THE ORDERLY ADMINISTRATION OF
JUSTICE IN SUCH CITY AND THE COUNTY OF RICHMOND, UNNECESSARILY INCONVEN-
IENCE AND CONFUSE LITIGANTS, AND INCREASE SIGNIFICANTLY THE COST OF
A. 10030 83
CONDUCTING LITIGATION WITHIN SUCH CITY AND COUNTY. THE PURPOSE OF THIS
ARTICLE IS TO PREVENT AN INTERREGNUM IN THE OPERATIONS OF THE UNIFIED
COURT SYSTEM IN CONNECTION WITH THE INCORPORATION OF THE CITY OF STATEN
ISLAND AND ITS ORGANIZATION AS A FUNCTIONAL UNIT OF LOCAL GOVERNMENT. BY
ESTABLISHING AN INTERIM COURT STRUCTURE FOR SUCH CITY, THE LEGISLATURE
INTENDS TO RELIEVE TAXPAYERS AND LITIGANTS OF THE EXPENSE, INCONVEN-
IENCE, CONFUSION, AND DELAY THAT WOULD BE OCCASIONED BY THE CREATION OF
A NEW COURT STRUCTURE FOR SUCH CITY. BY PRESERVING THE EXISTING TRIAL
COURT STRUCTURE IN THE COUNTY OF RICHMOND DURING THE PERIOD OF GOVERN-
MENTAL REORGANIZATION FOLLOWING THE INCORPORATION OF THE CITY OF STATEN
ISLAND, THE LEGISLATURE INTENDS THAT ALL INHABITANTS OF SUCH COUNTY AND
CITY WILL CONTINUE TO POSSESS THE SAME RIGHTS AND ACCESS TO THE UNIFIED
COURT SYSTEM THAT THEY POSSESSED IMMEDIATELY PRIOR TO THE INCORPORATION
OF SUCH CITY.
§ 178-A. CONTINUATION OF COURT PROCEEDINGS. THE INCORPORATION OF THE
CITY OF STATEN ISLAND SHALL NOT ALTER THE JURISDICTION OF ANY COURT
EXISTING IN THE COUNTY OF RICHMOND IMMEDIATELY PRIOR TO THE EFFECTIVE
DATE OF SUCH CITY'S INCORPORATION. ALL COURTS IN SUCH COUNTY ARE CONTIN-
UED, AND NO CIVIL OR CRIMINAL APPEAL, ACTION OR PROCEEDING PENDING
BEFORE ANY COURT OR ANY JUDGE OR JUSTICE ON THE EFFECTIVE DATE OF INCOR-
PORATION SHALL ABATE OR BE IMPAIRED; AND EVERY SUCH APPEAL, ACTION OR
PROCEEDING SHALL BE CONTINUED IN THE COURT IN WHICH SUCH APPEAL, ACTION
OR PROCEEDING WAS PENDING IMMEDIATELY PRIOR TO SUCH EFFECTIVE DATE.
§ 178-B. JUDICIAL TRANSITION. THERE IS ESTABLISHED A JUDICIAL TRANSI-
TION PERIOD FOR THE CITY OF STATEN ISLAND. SUCH PERIOD SHALL COMMENCE
ON THE EFFECTIVE DATE OF SUCH CITY'S INCORPORATION AND TERMINATE ON
DECEMBER THIRTY-FIRST IN THE FIFTH YEAR FOLLOWING SUCH INCORPORATION OR
UNTIL THE PROVISIONS OF THIS ARTICLE ARE SPECIFICALLY SUPERSEDED BY
STATE LAW.
§ 178-C. JUDICIARY JURISDICTION. DURING THE JUDICIAL TRANSITION PERI-
OD:
(1) THE COUNTY OF RICHMOND SHALL BE DEEMED TO BE A COUNTY WITHIN THE
CITY OF NEW YORK FOR ALL PURPOSES OF ARTICLE SIX OF THE STATE CONSTITU-
TION;
(2) THE COUNTY OF RICHMOND SHALL BE DEEMED TO BE A COUNTY WITHIN THE
CITY OF NEW YORK FOR THE PURPOSES OF SECTION FIVE HUNDRED TWO OF THIS
CHAPTER;
(3) THE CITY OF STATEN ISLAND SHALL BE DEEMED TO BE A PART OF THE CITY
OF NEW YORK FOR THE PURPOSES OF SECTION ONE HUNDRED FIFTY-FIVE AND ARTI-
CLES TWO-A AND TWO-B OF TITLE TWO OF THE VEHICLE AND TRAFFIC LAW; AND
(4) THE JUDGE OF THE SURROGATE'S COURT IN THE COUNTY OF RICHMOND SHALL
BE DEEMED TO BE A JUDGE OF A SURROGATE'S COURT WITHIN THE CITY OF NEW
YORK FOR THE PURPOSES OF SUBDIVISION C OF SECTION TWELVE OF ARTICLE SIX
OF THE STATE CONSTITUTION.
§ 178-D. JUDICIARY; FAMILY COURT. NOTWITHSTANDING SECTION ONE HUNDRED
TWENTY-ONE OF THE FAMILY COURT ACT, THE COUNTY OF RICHMOND SHALL BE
DEEMED TO BE A COUNTY WITHIN THE CITY OF NEW YORK DURING THE JUDICIAL
TRANSITION PERIOD, AND THERE SHALL BE NO FEWER THAN THREE JUDGES OF SUCH
COURT WHO SHALL BE RESIDENTS OF THE COUNTY OF RICHMOND. A VACANCY OCCUR-
RING IN THE OFFICE OF ANY SUCH JUDGE DURING THE JUDICIAL TRANSITION
PERIOD SHALL BE FILLED BY THE MAYOR OF THE CITY OF NEW YORK UPON THE
RECOMMENDATION OF THE MAYOR OF THE CITY OF STATEN ISLAND CONSISTENT WITH
THE PROVISIONS OF SECTION TWO HUNDRED SIXTEEN-A OF THE FAMILY COURT ACT.
§ 178-E. JUDICIARY; CRIMINAL COURT. NOTWITHSTANDING THE PROVISIONS OF
SECTIONS TWENTY AND TWENTY-TWO OF THE NEW YORK CITY CRIMINAL COURT ACT,
THE CITY OF STATEN ISLAND SHALL BE DEEMED TO BE PART OF THE CITY OF NEW
A. 10030 84
YORK DURING THE JUDICIAL TRANSITION PERIOD, AND THERE SHALL BE NO FEWER
THAN THREE JUDGES OF SUCH COURT WHO SHALL BE RESIDENTS OF THE CITY OF
STATEN ISLAND. A VACANCY OCCURRING IN THE OFFICE OF SUCH JUDGE DURING
THE JUDICIAL TRANSITION PERIOD SHALL BE FILLED BY THE MAYOR OF THE CITY
OF NEW YORK UPON THE RECOMMENDATION OF THE MAYOR OF THE CITY OF STATEN
ISLAND CONSISTENT WITH THE PROVISIONS OF SECTION TWENTY-TWO OF THE NEW
YORK CITY CRIMINAL COURT ACT.
§ 178-F. JUDICIARY; CIVIL COURT. NOTWITHSTANDING THE PROVISIONS OF
SECTION ONE HUNDRED TWO-A OF THE NEW YORK CITY CIVIL COURT ACT, THE CITY
OF STATEN ISLAND SHALL BE DEEMED TO BE PART OF THE CITY OF NEW YORK
DURING THE JUDICIAL TRANSITION PERIOD, AND THERE SHALL BE NO FEWER THAN
THREE JUDGES OF SUCH COURT WHO SHALL BE RESIDENTS OF THE CITY OF STATEN
ISLAND. A VACANCY OCCURRING IN THE OFFICE OF SUCH JUDGE OTHERWISE THAN
BY EXPIRATION OF TERM DURING THE JUDICIAL TRANSITION PERIOD SHALL BE
FILLED BY THE MAYOR OF THE CITY OF NEW YORK UPON THE RECOMMENDATION OF
THE MAYOR OF THE CITY OF STATEN ISLAND CONSISTENT WITH THE PROVISIONS OF
SECTION ONE HUNDRED TWO-A OF THE NEW YORK CITY CIVIL COURT ACT.
§ 178-G. JUDICIAL TRANSITION; STRUCTURE. THE MAYOR AND THE COMMON
COUNCIL OF THE CITY OF STATEN ISLAND, IN CONSULTATION WITH THE CHIEF
ADMINISTRATOR OF THE COURTS, SHALL DEVELOP A PLAN FOR AN APPROPRIATE
COURT STRUCTURE FOR THE CITY OF STATEN ISLAND FOLLOWING THE JUDICIAL
TRANSITION PERIOD. SUCH PLAN SHALL INCLUDE RECOMMENDATIONS FOR THE
JURISDICTION OF EACH COURT, THE NUMBER OF JUDGES NEEDED, A PERSONNEL
STRUCTURE FOR NONJUDICIAL OFFICERS AND EMPLOYEES, NECESSARY PHYSICAL
FACILITIES, AND A FISCAL ANALYSIS OF EACH COMPONENT OF THE PLAN. SUCH
PLAN SHALL BE SUBMITTED TO THE GOVERNOR, THE LEGISLATURE AND TO THE
CHIEF JUDGE OF THE STATE, NO LATER THAN THREE YEARS FOLLOWING COMMENCE-
MENT OF THE JUDICIAL TRANSITION PERIOD.
§ 178-H. UNIFIED COURT SYSTEM; SERVICES. THE CHIEF ADMINISTRATOR OF
THE COURTS IS AUTHORIZED TO DO ALL THINGS NECESSARY TO CONTINUE THE
EFFICIENT OPERATION OF THE UNIFIED COURT SYSTEM WITHIN THE COUNTY OF
RICHMOND AND THE CITY OF STATEN ISLAND DURING AND AFTER THE JUDICIAL
TRANSITION PERIOD.
§ 178-I. JUDICIAL TRANSITION SERVICES. DURING THE JUDICIAL TRANSITION
PERIOD, THE MAYOR AND THE COMPTROLLER OF THE CITY OF STATEN ISLAND AND
THE MAYOR AND THE COMPTROLLER OF THE CITY OF NEW YORK ARE AUTHORIZED TO
ENTER INTO AGREEMENTS RELATING TO THE PROVISION OF MUNICIPAL SERVICES
FOR THE COURTS WITHIN THE CITY OF STATEN ISLAND. SUCH MUNICIPAL SERVICES
MAY INCLUDE, BUT SHALL NOT BE LIMITED TO, CORRECTIONAL SERVICES.
§ 178-J. EFFECT OF EXISTING COLLECTIVE BARGAINING AGREEMENTS.
NOTWITHSTANDING ANY OTHER PROVISION OF LAW:
(1) THE PROVISIONS OF THIS ARTICLE SHALL NOT ALTER ANY EXISTING
COLLECTIVE NEGOTIATING UNIT OF NONJUDICIAL EMPLOYEES OR ANY PROVISION OF
A COLLECTIVE NEGOTIATING AGREEMENT IN EFFECT ON THE EFFECTIVE DATE OF
THIS ARTICLE.
(2) TO THE EXTENT PERMITTED BY THE STATE CONSTITUTION, WHERE A JUDI-
CIAL OR NONJUDICIAL OFFICER OR EMPLOYEE OF THE UNIFIED COURT SYSTEM IS
REQUIRED AS A CONDITION OF HIS OR HER CONTINUED EMPLOYMENT TO RESIDE IN
THE CITY OF NEW YORK AND, ON THE EFFECTIVE DATE OF THIS ARTICLE, HE OR
SHE RESIDES IN THE COUNTY OF RICHMOND, SUCH OFFICER OR EMPLOYEE SHALL BE
DEEMED TO RESIDE IN THE CITY OF NEW YORK FOR SO LONG AS HE OR SHE
REMAINS IN HIS OR HER POSITION, PROVIDED HE OR SHE CONTINUES TO RESIDE
IN THE COUNTY OR IN THE CITY OF NEW YORK.
(3) THE NONJUDICIAL PERSONNEL OF THE COURTS AFFECTED BY THIS ARTICLE
IN OFFICE ON THE EFFECTIVE DATE OF THIS ARTICLE SHALL, TO THE EXTENT
PRACTICABLE, BE CONTINUED WITHOUT DIMINUTION OF SALARIES AND WITH THE
A. 10030 85
SAME STATUS AND RIGHTS IN THE COURTS CONTINUED IN THE COUNTY OF RICH-
MOND.
§ 7-001. Section 31 of the public housing law, as amended by chapter
829 of the laws of 1947, is amended to read as follows:
§ 31. Scope of authority's jurisdiction. The territorial jurisdic-
tion of an authority established for a city or village shall be cotermi-
nous with the territorial limits of such city or village, and the terri-
torial jurisdiction of an authority established for a town shall include
all such town, except that such territorial jurisdiction shall not
include any territory that lies within the boundaries of any village,
whether such village has or has not established an authority. The
members of such town authority shall if they consent and when authorized
by resolutions of the town board and the village board, act as the
authority in and for said village, the same as if it had been created
especially for said village.
THE FOREGOING NOTWITHSTANDING, THE NEW YORK CITY HOUSING AUTHORITY,
THE CREATION AND ESTABLISHMENT OF WHICH WAS VALIDATED PURSUANT TO
SECTION FOUR HUNDRED OF THIS CHAPTER, SHALL CONTINUE TO HAVE TERRITORIAL
JURISDICTION FOR THE FIVE COUNTIES WHICH HAD CONSTITUTED PARTS OF THE
CITY OF NEW YORK PRIOR TO THE ESTABLISHMENT OF THE CITY OF STATEN
ISLAND.
§ 7-002. Subdivision 3 of section 402 of the public housing law, as
added by chapter 96 of the laws of 2013, is amended to read as follows:
3. A. The authority shall consist of seven members appointed by the
mayor, one of whom shall be designated by the mayor as [chairman] CHAIR-
PERSON removable at his or her pleasure. The term of office of each
member other than the [chairman] CHAIRPERSON shall be three years,
provided, however, that the initial appointments of the six members
other than the [chairman] CHAIRPERSON shall be as follows: two shall be
appointed for one-year terms, two shall be appointed for two-year terms,
and two shall be appointed for three-year terms. The mayor shall file
with the commissioner of housing a certificate of appointment of the
[chairman] CHAIRPERSON and of each member. Any member other than the
[chairman] CHAIRPERSON may be removed by the mayor upon filing in the
office of the commissioner of citywide administrative services and serv-
ing upon the member the reasons therefor. Such document setting forth
the reasons shall be made available to the general public, which shall
include but not be limited to publishing the reasons on the New York
city housing authority's website. Three of such members shall be a
tenant of record or an authorized member of the tenant household, in
good standing, residing in one of the federal projects owned or operated
by the authority, provided, however, that for the initial appointments
of the three such members, one shall be among the members initially
appointed for one-year terms, one shall be among the members initially
appointed for two-year terms, and one shall be among the members
initially appointed for three-year terms. A vacancy in the office of a
member other than the [chairman] CHAIRPERSON occurring otherwise than by
expiration of term shall be filled for the unexpired term. Further, any
vacancy in the office of a tenant member shall only be filled by the
appointment of an eligible tenant member, and such appointment shall be
made within ninety days of such vacancy.
B. NOTWITHSTANDING PARAGRAPH A OF THIS SUBDIVISION, UPON THE ESTAB-
LISHMENT OF A CITY OF STATEN ISLAND AND FOR SO LONG AS THE NEW YORK CITY
HOUSING AUTHORITY SHALL HAVE TERRITORIAL JURISDICTION IN THE CITY OF
STATEN ISLAND, SUCH AUTHORITY SHALL CONSIST OF EIGHT MEMBERS, THE EIGHTH
OF WHOM SHALL BE APPOINTED BY THE MAYOR OF STATEN ISLAND AND SHALL SERVE
A. 10030 86
FOR A FIVE-YEAR TERM. THE MAYOR OF THE CITY OF STATEN ISLAND SHALL FILE
WITH THE COMMISSIONER OF HOUSING AND THE CHAIRPERSON OF THE NEW YORK
CITY HOUSING AUTHORITY A CERTIFICATE OF APPOINTMENT OF SUCH MEMBER. SUCH
MEMBER MAY BE REMOVED BY THE MAYOR OF STATEN ISLAND FOR CAUSE AFTER A
PUBLIC HEARING. SUCH MEMBER MAY BE OF ANY POLITICAL PARTY. A VACANCY IN
THE OFFICE OF SUCH MEMBER OCCURRING OTHER THAN BY EXPIRATION OF A TERM
SHALL BE FILLED FOR THE UNEXPIRED TERM.
§ 7-003. Section 455 of the education law, as amended by chapter 724
of the laws of 1976, is amended to read as follows:
§ 455. Relationship with the board of education and the city of New
York. 1. In order most effectively to carry out its corporate purposes,
the fund shall cooperate with the director of management and budget and
the board of education of the city of New York in matters relating to
land acquisition and capital planning for school buildings and facili-
ties. During the course of construction, reconstruction, rehabilitation
and improvement of combined occupancy structures the fund shall consult
with personnel of such board as the work progresses in matters relating
to space requirements, site plans, architectural concept, and substan-
tial changes in the plans and specifications therefor, and in matters
relating to the original furnishings, equipment, machinery and apparatus
needed to furnish and equip the school portion of such buildings and
structures, upon the completion of work. The board, on its part, shall
perform such functions and services for the fund as may be requested and
the fund shall pay to the board, from any monies of the fund available
for such purpose, the reasonable cost of such functions and services.
2. NOTWITHSTANDING SUBDIVISION ONE OF THIS SECTION, UPON THE ESTAB-
LISHMENT OF A CITY OF STATEN ISLAND, WITH RESPECT TO ANY FUND ACTIVITIES
TO TAKE PLACE WITHIN SUCH CITY OF STATEN ISLAND, THE FUND SHALL COOPER-
ATE WITH THE MAYOR AND COMPTROLLER OF SUCH CITY OF STATEN ISLAND AND THE
BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF STATEN
ISLAND IN MATTERS RELATING TO LAND ACQUISITION AND CAPITAL PLANNING FOR
SCHOOL BUILDINGS AND FACILITIES TO THE SAME EXTENT AS WITH THE RESPEC-
TIVE OFFICIALS OF THE CITY OF NEW YORK.
§ 7-004. Paragraph (c) of subdivision 1 of section 462 of the educa-
tion law, as separately amended by chapters 724 and 729 of the laws of
1976, is amended to read as follows:
(c) (I) To assure the continued operation and solvency of the capital
reserve fund for the carrying out of the public purposes of this arti-
cle, provision is made in paragraph (a) of this subdivision for the
accumulation in the capital reserve fund of an amount equal to the maxi-
mum amount of principal and interest maturing and becoming due and sink-
ing fund payments required to be made in any succeeding fiscal year on
all bonds of the fund then outstanding secured by the capital reserve
fund. In order further to assure such maintenance of the capital
reserve fund, the board of education shall annually request from the
city of New York and pay over to the fund, for deposit in the capital
reserve fund, such sum, if any, as shall be certified by the [chairman]
CHAIRPERSON of the fund to the board, the mayor and the director of
management and budget of the city of New York as necessary to restore
the capital reserve fund to an amount equal to the maximum amount of
principal and interest maturing and becoming due and sinking fund
payments required to be made in the next succeeding fiscal year on the
bonds of the fund then outstanding secured by the capital reserve fund;
provided, however, that such sum shall have been first appropriated by
the city to the board or shall otherwise have been made lawfully avail-
able to the board for such purpose. The [chairman] CHAIRPERSON of the
A. 10030 87
fund shall annually, not later than the fifteenth day of February in
each year, make and deliver to the board, the mayor and the director of
management and budget his OR HER certificate stating the amount, if any,
required to restore the capital reserve fund to the amount aforesaid and
the amount so stated, if any, shall be paid to the fund by the board
during the then current fiscal year of the fund. In the event of the
failure or inability of the board to pay over the stated amount to the
fund on or before August first of the same year, the [chairman] CHAIR-
PERSON of the fund shall forthwith make and deliver to the comptroller
of the state of New York AND THE MAYOR AND COMPTROLLER OF THE CITY OF
STATEN ISLAND a further certificate restating the amount so required
and, after the comptroller of the state of New York shall have given
written notice to the commissioner of education, the mayor and director
of management and budget AND THE MAYOR AND COMPTROLLER OF THE CITY OF
STATEN ISLAND, such amount shall be paid over to the fund by the comp-
troller of the state of New York out of the next payment of state aid
apportioned, FIRST, to the city of New York on behalf of the city school
district of the city of New York for the support of common schools or
such other aid or assistance payable in support of common schools as
shall supersede or supplement such state aid for the support of common
schools, including federal moneys apportioned by the state to the city
of New York on behalf of the city school district for the support of
common schools AND, THEREAFTER, IF SUCH AMOUNTS ARE INSUFFICIENT, FROM
SUCH SIMILAR AID PAYABLE TO THE CITY OF STATEN ISLAND. Any amount so
paid over to the fund shall be deducted from the corresponding appor-
tionment of state education aid or other aid or assistance for education
otherwise credited to the board of education for its purposes and shall
not obligate the state to make or entitle the city or the board of
education OR CITY OF STATEN ISLAND to receive any additional or
increased apportionment or payment of state aid for school purposes.
(II) NOTWITHSTANDING SUBPARAGRAPH (I) OF THIS PARAGRAPH, ON OR AFTER
THE FIRST OF JANUARY NEXT SUCCEEDING THE DATE ON WHICH THIS SUBPARAGRAPH
SHALL HAVE BECOME A LAW, THE FUND SHALL NOT ISSUE ANY BONDS, NOTES OR
OTHER OBLIGATIONS SECURED BY A CAPITAL RESERVE FUND INTO WHICH STATE AID
OR OTHER AID OTHERWISE PAYABLE TO THE CITY OF STATEN ISLAND IS TO BE
DEPOSITED PURSUANT TO THIS PARAGRAPH, PROVIDED, HOWEVER, THE FUND MAY
ISSUE REFUNDING BONDS TO PAY BONDS PREVIOUSLY ISSUED, WHICH REFUNDING
BONDS MAY BE SO SECURED IF THE FUND GIVES REASONABLE ADEQUATE NOTICE OF
ITS INTENTION TO ISSUE SUCH REFUNDING BONDS TO THE MAYOR OF THE CITY OF
STATEN ISLAND AND THE COMPTROLLER OF THE CITY OF STATEN ISLAND AND BOTH
SUCH OFFICIALS ARE GIVEN A REASONABLE OPPORTUNITY TO PARTICIPATE AT THE
MEETING OR MEETINGS OF THE BOARD OF THE FUND AT WHICH ACTION IS TAKEN TO
ISSUE SUCH REFUNDING BONDS.
§ 7-005. Paragraph (c) of subdivision 3 of section 462 of the educa-
tion law, as amended by chapter 474 of the laws of 1996, is amended to
read as follows:
(c) (I) To assure the continued operation and solvency of the fund for
the carrying out of the public purposes of this article, provision is
made in paragraph (a) of this subdivision for the accumulation in a debt
service reserve fund of an amount equal to the debt service reserve fund
requirement on all bonds of the fund then outstanding secured by a debt
service or debt service reserve fund. In order further to assure such
maintenance of a debt service reserve fund, the board of education shall
annually request from the city of New York and pay over to the fund
after making the payment required by paragraph (c) of subdivision one of
this section for deposit in a debt service reserve fund, such sum, if
A. 10030 88
any, as shall be certified by the [chairman] CHAIRPERSON of the fund to
the board, the mayor and the director of the budget of the city of New
York as necessary to restore such debt service reserve fund to an amount
equal to the debt service reserve fund requirement for the bonds of the
fund secured by such debt service reserve fund; provided, however, that
such sum shall have been first appropriated by the city to the board or
shall otherwise have been made lawfully available to the board for such
purpose. The [chairman] CHAIRPERSON of the fund shall annually, not
later than the fifteenth day of February in each year, make and deliver
to the board, the mayor and the director of the budget his OR HER
certificate stating the amount, if any, required to restore a debt
service reserve fund to the amount aforesaid and the amount so stated
after making the payment required by paragraph (c) of subdivision one of
this section if any, shall be paid to the fund by the board during the
then current fiscal year of the fund. In the event of the failure or
inability of the board to pay over the stated amount to the fund on or
before August first of the same year, the [chairman] CHAIRPERSON of the
fund shall forthwith make and deliver to the comptroller of the state of
New York AND THE MAYOR AND COMPTROLLER OF THE CITY OF STATEN ISLAND a
further certificate restating the amount so required and, after the
comptroller of the state of New York shall have given written notice to
the commissioner, the mayor and director of the budget AND THE MAYOR AND
COMPTROLLER OF THE CITY OF STATEN ISLAND, such amount after making the
payment required by paragraph (c) of subdivision one of this section
shall be paid over to the fund by the comptroller of the state of New
York out of the next payment of state aid apportioned, FIRST, to the
city of New York on behalf of the city school district of the city of
New York for the support of common schools or such other aid or assist-
ance payable in support of common schools as shall supercede or supple-
ment such state aid for the support of common schools, including federal
moneys apportioned by the state to the city of New York on behalf of the
city school district for the support of common schools AND, THEREAFTER,
IF SUCH AMOUNTS ARE INSUFFICIENT, FROM SUCH SIMILAR AID PAYABLE TO THE
CITY OF STATEN ISLAND. Any amount so paid over to the fund under para-
graph (c) of subdivision one of this section shall be deducted from the
corresponding apportionment of state education aid or other aid or
assistance for education otherwise credited to the board of education OR
THE CITY OF STATEN ISLAND for its purposes and shall not obligate the
state to make or entitle the city or the board of education OR THE CITY
OF STATEN ISLAND to receive any additional or increased apportionment or
payment of state aid for school purposes.
(II) NOTWITHSTANDING SUBPARAGRAPH (I) OF THIS PARAGRAPH, ON OR AFTER
THE FIRST OF JANUARY NEXT SUCCEEDING THE DATE ON WHICH THIS SUBPARAGRAPH
SHALL HAVE BECOME A LAW, THE FUND SHALL NOT ISSUE ANY BONDS, NOTES OR
OTHER OBLIGATIONS SECURED BY A DEBT SERVICE RESERVE FUND INTO WHICH
STATE AID OR OTHER AID OTHERWISE PAYABLE TO THE CITY OF STATEN ISLAND IS
TO BE DEPOSITED PURSUANT TO THIS PARAGRAPH, PROVIDED, HOWEVER, THE FUND
MAY ISSUE REFUNDING BONDS TO PAY BONDS PREVIOUSLY ISSUED, WHICH REFUND-
ING BONDS MAY BE SO SECURED IF THE FUND GIVES REASONABLE ADEQUATE NOTICE
OF ITS INTENTION TO ISSUE SUCH REFUNDING BONDS TO THE MAYOR OF THE CITY
OF STATEN ISLAND AND THE COMPTROLLER OF THE CITY OF STATEN ISLAND AND
BOTH SUCH OFFICIALS ARE GIVEN A REASONABLE OPPORTUNITY TO PARTICIPATE AT
THE MEETING OR MEETINGS OF THE BOARD OF THE FUND AT WHICH ACTION IS
TAKEN TO ISSUE SUCH REFUNDING BONDS.
A. 10030 89
§ 7-006. Subdivision 1 of section 1045-c of the public authorities
law, as added by chapter 513 of the laws of 1984, is amended to read as
follows:
1. A corporation known as the New York city municipal water finance
authority is hereby created for public purposes and charged with the
duties and having the powers provided in this title. The authority shall
be a body corporate and politic constituting a public benefit corpo-
ration. It shall be administered by a board of directors consisting of
[seven] EIGHT members as follows: the commissioner of environmental
protection of the city, the state commissioner of environmental conser-
vation, the director of management and budget of the city, the commis-
sioner of finance of the city, two public members to be appointed by the
mayor, ONE PUBLIC MEMBER TO BE APPOINTED BY THE MAYOR OF STATEN ISLAND
and one public member to be appointed by the governor. One public
member appointed by the mayor shall serve for a term of one year, one
public member appointed by the mayor shall serve for a term of two
years, and the public [member] MEMBERS appointed by the governor AND
MAYOR OF STATEN ISLAND shall serve for a term of two years from January
first next succeeding the date of their appointment. Their successors
shall serve for terms of two years each. Members shall continue in
office until their successors have been appointed and qualified. The
mayor, MAYOR OF STATEN ISLAND or the governor shall fill any vacancy
which may occur by reason of death, resignation or otherwise in a manner
consistent with the original appointment. A public member may be
removed by the mayor, MAYOR OF STATEN ISLAND, or the governor, whichever
appointed him OR HER, for cause, but not without an opportunity to be
heard in person or by counsel, in his OR HER defense, upon not less than
ten days' notice. The mayor shall select a [chairman] CHAIRPERSON from
among the directors appointed by him OR HER who shall serve in such
capacity at his OR HER pleasure. The [chairman] CHAIRPERSON shall
preside over all meetings of the board of directors and shall have such
other duties as may be prescribed by the board.
§ 7-007. Subdivision 2 of section 1045-f of the public authorities
law, as added by chapter 513 of the laws of 1984, is amended to read as
follows:
2. The water board shall consist of seven members, SIX OF WHICH SHALL
BE appointed by the mayor AND, THE SEVENTH OF WHICH SHALL BE APPOINTED
BY THE MAYOR OF STATEN ISLAND. THE MAYOR OF STATEN ISLAND SHALL FILL
THE EARLIER OF THE FIRST EXPIRATION OF A TERM OR THE FIRST VACANCY
OCCURRING AFTER THE DATE OF ESTABLISHMENT OF THE CITY OF STATEN ISLAND
AND ANY SUCCESSOR THERETO. Terms of office of the members shall be two
years except that the terms of four of the board members first appointed
shall be one year. At least one member shall have experience in the
science of water resource development. No member shall be a director of
the authority. The mayor shall appoint a [chairman] CHAIRPERSON from
among the members of the board. All members shall continue to hold
office until their successors are appointed and qualified. Vacancies
shall be filled in the manner provided for original appointments. Vacan-
cies, occurring otherwise than by expiration of term of office, shall be
filled in the same manner as original appointments for the unexpired
terms.
§ 7-008. Subdivision 5 of section 1045-f of the public authorities
law, as added by chapter 513 of the laws of 1984, is amended to read as
follows:
5. The APPOINTING mayor may remove any member for inefficiency,
neglect of duty or misconduct in office after giving such member a copy
A. 10030 90
of the charges against such member and an opportunity to be heard and
defended, in person or by counsel, upon not less than ten days' notice.
If any member shall be so removed, the APPOINTING mayor shall file in
the office of the clerk of the city a complete statement of charges
against such member, and the APPOINTING mayor's findings thereon,
together with a complete record of the proceedings.
§ 7-009. Paragraphs e and f of subdivision 1 of section 656 of the
private housing finance law, as amended by chapter 174 of the laws of
1992, are amended to read as follows:
e. (I) To assure the continued operation and solvency of the corpo-
ration for the carrying out of its corporate purposes, provision is made
in paragraph a of this subdivision for the accumulation in each capital
reserve fund of an amount equal to the maximum capital reserve fund
requirement. In order further to assure such maintenance of each capital
reserve fund, there shall be paid by the city to the corporation for
deposit in each capital reserve fund on or before the first day of
April, in each year, such amount, if any, needed for the purpose of
restoring each such capital reserve fund to the maximum capital reserve
fund requirement for such fund, as shall be certified by the chairperson
of the corporation to the mayor and the director of management and budg-
et on or before the first day of December next preceding; provided that
any such amount shall have been first appropriated by or on behalf of
the city for such purpose or shall have been otherwise made available
from the proceeds of notes or bonds of the city authorized and issued
pursuant to the local finance law for such purpose, which is hereby
determined to be a specific object or purpose having a period of proba-
ble usefulness of five years. In the event of the failure or inability
of the city to pay over to the corporation, in full, on or before such
first day of April the amount so certified the chairperson of the corpo-
ration shall forthwith certify to the comptroller of the state of New
York the amount remaining unpaid and thereupon the state comptroller
shall pay to the corporation, out of the first moneys available for the
next succeeding payments of [(i)] (A) state aid apportioned to the city
of New York AND, TO THE EXTENT THE AMOUNTS AVAILABLE THEREFOR ARE INSUF-
FICIENT, STATE AID APPORTIONED TO THE CITY OF STATEN ISLAND, as per
capita aid for the support of local government pursuant to section
fifty-four of the state finance law or [(ii)] (B) such other aid or
assistance payable by the state to the city AND TO THE EXTENT THE
AMOUNTS AVAILABLE THEREFOR ARE INSUFFICIENT, SUCH AID OR ASSISTANCE
PAYABLE BY THE STATE TO THE CITY OF STATEN ISLAND and not otherwise
allocated as shall supersede or supplement such state per capita aid,
including federal moneys apportioned to the city AND, TO THE EXTENT THE
AMOUNTS AVAILABLE THEREFOR ARE INSUFFICIENT, SUCH MONEYS APPORTIONED TO
THE CITY OF STATEN ISLAND by the state, such amount remaining unpaid,
after giving written notice to the director of management and budget of
each amount to be paid out of such state aid, until the amount in each
such capital reserve fund is restored to the maximum capital reserve
fund requirement thereof; provided, however, that prior to the issuance
of any notes or bonds of the corporation pursuant to this article the
city shall have enacted a local law authorizing payments from such
sources into such a fund so long as any notes or bonds of the corpo-
ration shall be outstanding and unpaid, and provided further that
moneys, if any, payable to the city university construction fund pursu-
ant to the provisions of the city university construction fund act shall
be paid, in full, to such fund, prior to any payments therefrom to the
corporation. Any amount so paid over to the corporation shall be
A. 10030 91
deducted from the corresponding apportionment of such per capita state
aid otherwise payable to the city of New York OR THE CITY OF STATEN
ISLAND, AS APPLICABLE, and shall not obligate the state to make nor
entitle the city OR THE CITY OF STATEN ISLAND to receive any additional
apportionment or payment of per capita state aid. All amounts paid over
to the corporation as provided in this [paragraph] SUBPARAGRAPH, includ-
ing amounts paid by the state comptroller out of payments of such state
aid, shall constitute and be accounted for as non-interest bearing loans
by the city OR THE CITY OF STATEN ISLAND, AS APPLICABLE to the corpo-
ration and, subject, subordinate and junior to the rights of the holders
of any notes or bonds of the corporation theretofore or thereafter
issued, shall be repaid to the city from [(i)] (A) moneys in such capi-
tal reserve fund in excess of the maximum capital reserve fund require-
ment thereof or [(ii)] (B) any moneys of the corporation not required
for any other of its corporate purposes.
(II) NOTWITHSTANDING SUBPARAGRAPH (I) OF THIS PARAGRAPH, ON OR AFTER
THE FIRST OF JANUARY NEXT SUCCEEDING THE DATE ON WHICH THIS SUBPARAGRAPH
SHALL HAVE BECOME A LAW, THE CORPORATION SHALL NOT ISSUE ANY BONDS,
NOTES OR OTHER OBLIGATIONS SECURED BY A CAPITAL RESERVE FUND INTO WHICH
PER CAPITA STATE AID OR OTHER AID OTHERWISE PAYABLE TO THE CITY OF
STATEN ISLAND IS TO BE DEPOSITED PURSUANT TO THIS SUBPARAGRAPH,
PROVIDED, HOWEVER, THE CORPORATION MAY ISSUE REFUNDING BONDS TO PAY
BONDS PREVIOUSLY ISSUED, WHICH REFUNDING BONDS MAY BE SO SECURED IF THE
CORPORATION GIVES REASONABLE ADEQUATE NOTICE OF ITS INTENTION TO ISSUE
SUCH REFUNDING BONDS TO THE MAYOR OF THE CITY OF STATEN ISLAND AND THE
COMPTROLLER OF THE CITY OF STATEN ISLAND AND BOTH SUCH OFFICIALS ARE
GIVEN A REASONABLE OPPORTUNITY TO PARTICIPATE AT THE MEETING OR MEETINGS
OF THE BOARD OF THE CORPORATION AT WHICH ACTION IS TAKEN TO ISSUE SUCH
REFUNDING BONDS.
f. In the event the chairperson of the corporation shall certify to
the mayor and director of management and budget or to the state comp-
troller any amount necessary to restore a capital reserve fund to the
maximum capital reserve fund requirement thereof pursuant to subdivision
e of this section, the chairperson shall simultaneously deliver to THE
MAYOR OF THE CITY OF STATEN ISLAND AND THE COMPTROLLER OF THE CITY OF
STATEN ISLAND AND ADDITIONALLY TO such persons a statement of the cause
or causes of such capital reserve fund deficiency and the measures to be
taken by the corporation or the department of housing preservation and
development to insure repayment of any loans made by the city OR THE
CITY OF STATEN ISLAND to the corporation, including amounts paid by the
state comptroller out of payments of state aid, for the purpose of
restoring such capital reserve fund to the maximum capital reserve fund
requirement thereof and to prevent the recurrence of any such deficien-
cy.
§ 7-010. Subdivision 4 of section 1680-b of the public authorities
law, as amended by chapter 62 of the laws of 1988, is amended to read as
follows:
4. In the event that a participating municipality fails to pay to the
authority when due all or part of the rentals and other payments payable
pursuant to any lease, sublease or agreement with the authority, the
chairman or another officer of the authority shall certify at the times
provided in this subdivision the amount of rentals and other payments
then due from such participating municipality and unpaid. The state
comptroller, upon receipt of such certificate, shall deduct the amount
of such rentals and other payments as remains unpaid to the authority
first from the aid payable to such participating municipality from the
A. 10030 92
court facilities incentive aid fund established by section ninety-four
of the state finance law and, then, from the next succeeding payments of
state aid apportioned to such participating municipality, as revenue
sharing, per capita aid, and any other aid pursuant to section fifty-
four of the state finance law and, then, from the next succeeding
payments of state aid for any local governmental administrative costs
that are reimbursable to the participating municipality pursuant to
state law and, then, from the next succeeding payments of state aid from
moneys appropriated pursuant to section six hundred eight of the public
health law and pursuant to section ten-c of the highway law; provided,
however, that the right of the authority to the payment of any amount
deducted by the state comptroller pursuant to this section from per
capita aid apportioned to the city of New York OR, TO THE EXTENT INSUF-
FICIENT, THE CITY OF STATEN ISLAND shall be subject and subordinate to
the rights of the city university construction fund pursuant to section
sixty-two hundred seventy-nine of the education law, the New York city
housing development corporation pursuant to section six hundred fifty-
six of the private housing finance law, the trustees of the police
pension fund pursuant to paragraph e of subdivision seven of section
fifty-four of the state finance law, and the municipal assistance corpo-
ration for the city of New York pursuant to section three thousand thir-
ty-six-a of this chapter and subdivision one of section ninety-two-e of
the state finance law. In order to insure that the amount of rentals
and other payments due and unpaid by a participating municipality are
paid, the authority on or within thirty days prior to January twenty-
fifth, April twenty-fifth, July twenty-fifth and October twenty-fifth of
each year shall certify to the state comptroller the amount of rentals
and other payments then due and unpaid by each participating munici-
pality pursuant to any lease, sublease or other agreement. The amount
required to be deducted by the state comptroller pursuant to this subdi-
vision shall be deducted from such aid, whether or not the state aid
from which such deduction is to be made is then payable to the partic-
ipating municipality, and thereupon paid to the authority. The amount of
state aid payable to such participating municipality shall be reduced by
the amount deducted by the state comptroller notwithstanding the amount
appropriated and apportioned by the state to such participating munici-
pality, and the state shall not be obligated to make and the participat-
ing municipality shall not be entitled to receive any additional appor-
tionment or payment of such state aid. Nothing shall be construed to
create an obligation upon the state to appropriate moneys, to preclude
the state from reducing the amount of moneys appropriated or level of
assistance provided, or to preclude the state from altering or modifying
the manner in which it provides for or provides assistance.
§ 7-011. Section 1727 of the public authorities law is amended by
adding a new subdivision 9 to read as follows:
9. NOTWITHSTANDING THE PROVISIONS OF THIS SECTION OR ANY OTHER
PROVISION OF LAW TO THE CONTRARY, THE AUTHORITY SHALL CONTINUE ITS
CORPORATE EXISTENCE REGARDLESS OF THE ALTERATION OF THE COMPOSITION OF
THE BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW
YORK CAUSED BY THE INCORPORATION OF THE CITY OF STATEN ISLAND AND THE
ESTABLISHMENT OF THE CITY SCHOOL DISTRICT OF THE CITY OF STATEN ISLAND.
§ 8-001. Subdivision 1 of section 23 of the executive law, as amended
by chapter 385 of the laws of 2017, is amended to read as follows:
1. Each county, except RICHMOND COUNTY AND those COUNTIES contained
within the city of New York, and each city with a population of one
million or more, shall prepare a comprehensive emergency management
A. 10030 93
plan. Each city with a population of less than one million, town and
village is authorized to prepare a comprehensive emergency management
plan. The disaster preparedness commission shall provide assistance and
advice for the development of such plans. Each city with a population of
less than one million, town and village plan shall be coordinated with
the county plan.
§ 8-002. Subdivision 1 of section 101-b of the executive law, as
added by chapter 1214 of the laws of 1971, is amended to read as
follows:
1. Definitions. As used in this section,
a. "Agency" means any state board, bureau, commission, department,
division or officer authorized by law to adopt rules.
b. "Rule" means the whole or part of each agency statement of general
applicability or regulation or code that implements or applies law,
including the amendment, suspension or repeal thereof.
c. "Municipal corporation" means [a] ANY county outside the [city]
CITIES of New York AND STATEN ISLAND, a city, a town, a village or a
school district.
d. "Governing body" means:
(1) In a county, a board of supervisors, county legislature or other
body vested by its charter, other law or other valid enactment with
jurisdiction to enact local laws;
(2) In a city, the board of aldermen, a common council, commission or
other body vested by its charter or other law with jurisdiction to enact
ordinances or local laws;
(3) In a town, the town board;
(4) In a village, the board of trustees; and
(5) In a school district, the board of education, board of trustees or
sole trustee.
§ 8-003. Intentionally omitted.
§ 8-004. Subdivisions 1, 2, 3, 4 and 6 of section 246 of the executive
law, subdivisions 1, 2 and 3 as amended by section 10 of part D of chap-
ter 56 of the laws of 2010, subdivision 4 as amended by section 102 of
part WWW of chapter 59 of the laws of 2017, and subdivision 6 as added
by chapter 479 of the laws of 1970 and as renumbered by chapter 813 of
the laws of 1985, are amended to read as follows:
1. The program of state aid to county probation services shall be
administered by the division of criminal justice services with the
advice of the state probation commission and the director of the office
of probation and correctional alternatives. Funds appropriated to the
division for distribution as state aid to county probation services
[and], to the probation services of New York city AND TO THE PROBATION
SERVICES OF THE CITY OF STATEN ISLAND shall be distributed by the divi-
sion in accordance with rules and regulations adopted by the commission-
er of the division of criminal justice services after consultation with
the state probation commission and the director of the office of
probation and correctional alternatives.
2. State aid shall be granted to the city of New York, THE CITY OF
STATEN ISLAND and the respective counties outside [the city of New York]
SUCH CITIES for expenditures to be incurred by the county or [city] SUCH
CITIES in maintaining and improving local probation services subject to
amounts appropriated for this purpose. State aid grants shall not be
used for expenditures for capital additions or improvements, or for debt
service costs for capital improvements.
State aid shall be granted by the commissioner of the division of
criminal justice services after consultation with the state probation
A. 10030 94
commission and the director of the office of probation and correctional
alternatives, provided the respective counties OR THE CITY OF STATEN
ISLAND or the city of New York conform to standards relating to the
administration of probation services as adopted by the commissioner of
the division of criminal justice services after consultation with the
state probation commission and the director of the office of probation
and correctional alternatives.
3. Applications from counties OR THE CITY OF STATEN ISLAND or the city
of New York for state aid under this section shall be made by filing
with the division of criminal justice services, a detailed plan, includ-
ing cost estimates covering probation services for the fiscal year or
portion thereof for which aid is requested. Included in such estimates
shall be clerical costs and maintenance and operation costs as well as
salaries of probation personnel and such other pertinent information as
the commissioner of the division of criminal justice services may
require. Items for which state aid is requested under this section shall
be duly designated in the estimates submitted. The commissioner of the
division of criminal justice services, after consultation with the state
probation commission and the director of the office of probation and
correctional alternatives, shall approve such plan if it conforms to
standards relating to the administration of probation services as speci-
fied in the rules adopted by him or her.
4. An approved plan and compliance with standards relating to the
administration of probation services promulgated by the commissioner of
the division of criminal justice services shall be a prerequisite to
eligibility for state aid.
The commissioner of the division of criminal justice services may take
into consideration granting additional state aid from an appropriation
made for state aid for county probation services for counties OR THE
CITY OF STATEN ISLAND or the city of New York when a county OR THE CITY
OF STATEN ISLAND or the city of New York demonstrates that additional
probation services were dedicated to intensive supervision programs and
intensive programs for sex offenders. The commissioner shall grant addi-
tional state aid from an appropriation dedicated to juvenile risk inter-
vention services coordination by probation departments which shall
include, but not be limited to, probation services performed under arti-
cle three of the family court act. The administration of such additional
grants shall be made according to rules and regulations promulgated by
the commissioner of the division of criminal justice services. Each
county AND THE CITY OF STATEN ISLAND and the city of New York shall
certify the total amount collected pursuant to section two hundred
fifty-seven-c of this chapter. The commissioner of the division of crim-
inal justice services shall thereupon certify to the comptroller for
payment by the state out of funds appropriated for that purpose, the
amount to which the county OR THE CITY OF STATEN ISLAND or the city of
New York shall be entitled under this section. The commissioner shall,
subject to an appropriation made available for such purpose, establish
and provide funding to probation departments for a continuum of
evidence-based intervention services for youth alleged or adjudicated
juvenile delinquents pursuant to article three of the family court act
or for eligible youth before or sentenced under the youth part in
accordance with the criminal procedure law. Such additional state aid
shall be made in an amount necessary to pay one hundred percent of the
expenditures for evidence-based practices and juvenile risk and
evidence-based intervention services provided to youth sixteen years of
age or older when such services would not otherwise have been provided
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absent the provisions of [a] PART WWW OF chapter FIFTY-NINE of the laws
of two thousand seventeen [that increased the age of juvenile jurisdic-
tion].
6. The director, after consultation with the state probation commis-
sion, may authorize or require the comptroller to withhold the payment
of state aid to any county, OR THE CITY OF STATEN ISLAND or the city of
New York, in the event that such county, OR THE CITY OF STATEN ISLAND or
the city of New York, (a) fails to conform to standards of probation
administration as formulated by the director pursuant to this section,
(b) discontinues or fails to follow an approved plan, or (c) fails to
enforce in a satisfactory manner rules promulgated pursuant to this
section, or laws now in effect or hereafter adopted which relate in any
manner to the administration of probation services.
§ 8-004-a. The second undesignated paragraph of subdivision 4 of
section 246 of the executive law, as amended by section 103 of part WWW
of chapter 59 of the laws of 2017, is amended to read as follows:
The commissioner of the division of criminal justice services may take
into consideration granting additional state aid from an appropriation
made for state aid for county probation services for counties OR THE
CITY OF STATEN ISLAND or the city of New York when a county OR THE CITY
OF STATEN ISLAND or the city of New York demonstrates that additional
probation services were dedicated to intensive supervision programs and
intensive programs for sex offenders. The commissioner shall grant addi-
tional state aid from an appropriation dedicated to juvenile risk inter-
vention services coordination by probation departments which shall
include, but not be limited to, probation services performed under arti-
cle three of the family court act. The administration of such additional
grants shall be made according to rules and regulations promulgated by
the commissioner of the division of criminal justice services. Each
county AND THE CITY OF STATEN ISLAND and the city of New York shall
certify the total amount collected pursuant to section two hundred
fifty-seven-c of this chapter. The commissioner of the division of crim-
inal justice services shall thereupon certify to the comptroller for
payment by the state out of funds appropriated for that purpose, the
amount to which the county OR THE CITY IF STATEN ISLAND or the city of
New York shall be entitled under this section. The commissioner shall,
subject to an appropriation made available for such purpose, establish
and provide funding to probation departments for a continuum of
evidence-based intervention services for youth alleged or adjudicated
juvenile delinquents pursuant to article three of the family court act
or for eligible youth before or sentenced under the youth part in
accordance with the criminal procedure law.
§ 8-005. Subdivision 1 of section 255 of the executive law, as added
by chapter 603 of the laws of 1973, is amended to read as follows:
1. There is hereby created a department of probation in and for the
city of New York to have charge of all probation work in the supreme,
family and criminal courts in the counties of Bronx, Kings, New York[,]
AND Queens [and Richmond].
§ 8-006. The executive law is amended by adding a new section 255-a to
read as follows:
§ 255-A. PROBATION IN THE CITY OF STATEN ISLAND. 1. THERE IS HEREBY
CREATED A DEPARTMENT OF PROBATION IN AND FOR THE CITY OF STATEN ISLAND
TO HAVE CHARGE OF ALL PROBATION WORK IN THE SUPREME, FAMILY AND OTHER
CRIMINAL COURTS IN THE COUNTY OF RICHMOND.
2. THE HEAD OF SUCH DEPARTMENT SHALL BE A DIRECTOR OF PROBATION
APPOINTED BY THE MAYOR OF THE CITY OF STATEN ISLAND TO SERVE DURING THE
A. 10030 96
PLEASURE OF THE MAYOR. THE DIRECTOR SHALL HAVE CHARGE OF THE ADMINIS-
TRATION OF THE DEPARTMENT AND SHALL BE RESPONSIBLE FOR CARRYING OUT THE
FUNCTIONS OF THE DEPARTMENT INCLUDING INTAKE, INVESTIGATION, SUPER-
VISION, CONCILIATION AND PRE-DISPOSITION SOCIAL TREATMENT IN CASES
COMING TO THE COURTS REFERRED TO IN THIS SECTION. THE DIRECTOR MAY,
FROM TIME TO TIME, CREATE, ABOLISH, TRANSFER AND CONSOLIDATE BUREAUS AND
OTHER UNITS WITHIN THE DEPARTMENT AS HE OR SHE MAY DETERMINE NECESSARY
FOR EFFICIENT OPERATION THEREOF. THE DIRECTOR ALSO SHALL HAVE THE POWER
TO APPOINT AND REMOVE SUCH DEPUTY DIRECTORS, ASSISTANTS, PROBATION OFFI-
CERS AND OTHER EMPLOYEES AS MAY BE NEEDED FOR THE PERFORMANCE OF THE
DUTIES OF THE DEPARTMENT AND MAY PRESCRIBE THEIR DUTIES AND FIX THEIR
COMPENSATION, WITHIN APPROPRIATIONS MADE AVAILABLE THEREFOR BY THE CITY
OF STATEN ISLAND AND SUBJECT TO ALL APPLICABLE CIVIL SERVICE LAWS AND
RULES AND REGULATIONS. THE DIRECTOR MAY, IN HIS OR HER DISCRETION,
APPOINT VOLUNTEER PROBATION OFFICERS, WHEN NECESSARY, PROVIDED THEY HAVE
THE QUALIFICATIONS REQUIRED OF SALARIED OFFICERS, BUT NO SUCH VOLUNTEER
PROBATION OFFICER SHALL RECEIVE PAY FROM THE PUBLIC FUNDS FOR HIS OR HER
SERVICES. THE CITY OF STATEN ISLAND SHALL MAKE THE NECESSARY APPROPRI-
ATION FOR THE SALARIES OF THE DIRECTOR AND OF ALL OFFICERS AND EMPLOYEES
OF THE DEPARTMENT AS REFERRED TO HEREIN, AS WELL AS FOR THE EXPENSES
ACTUALLY AND NECESSARILY INCURRED BY SUCH DIRECTOR, OFFICERS AND EMPLOY-
EES IN THE PERFORMANCE OF THEIR DUTIES.
3. THE DIRECTOR SHALL DISCHARGE HIS OR HER POWERS AND RESPONSIBIL-
ITIES IN ACCORDANCE WITH ALL LAWS AND RULES APPLICABLE TO PROBATION AND
WITH THE GENERAL RULES REGULATING METHODS AND PROCEDURE IN THE ADMINIS-
TRATION OF PROBATION AS ADOPTED FROM TIME TO TIME PURSUANT TO SECTION
TWO HUNDRED FORTY-THREE OF THIS CHAPTER. THE DIRECTOR MAY ADOPT DEPART-
MENTAL RULES, NOT INCONSISTENT WITH LAW OR THE AFORESAID GENERAL RULES,
TO REGULATE THE POLICIES, PROGRAMS, STANDARDS, AND METHODS OF PROCEDURE
IN RELATION TO PROBATION AND THE POWERS AND DUTIES OF OFFICERS AND
EMPLOYEES AS IN THE DIRECTOR'S JUDGMENT ARE DEEMED PROPER.
4. NOTWITHSTANDING ANY OTHER PROVISION OF LAW OR OF THE STATEN ISLAND
CITY CHARTER OR ADMINISTRATIVE CODE, ANY DULY APPOINTED OFFICER OR
EMPLOYEE OF SUCH PROBATION DEPARTMENT MAY RESIDE IN ANY COUNTY WITHIN
THE STATE.
§ 8-007. Subdivisions 1 and 4 of section 257-c of the executive law,
as added by chapter 55 of the laws of 1992, are amended to read as
follows:
1. Notwithstanding any other provision of law, every county, THE CITY
OF STATEN ISLAND and the city of New York, may adopt a local law requir-
ing individuals currently serving or who shall be sentenced to a period
of probation upon conviction of any crime under article thirty-one of
the vehicle and traffic law to pay to the local probation department
with the responsibility of supervising the probationer an administrative
fee of thirty dollars per month. The department shall waive all or part
of such fee where, because of the indigence of the offender, the payment
of said surcharge would work an unreasonable hardship on the person
convicted, his or her immediate family, or any other person who is
dependent on such person for financial support.
4. In the event of non-payment of any fees which have not been waived
by the local probation department, the county, THE CITY OF STATEN ISLAND
or the city of New York may seek to enforce payment in any manner
permitted by law for enforcement of a debt.
§ 8-008. Subdivision 3 of section 262 of the executive law, as amended
by section 28 of part A of chapter 56 of the laws of 2010, is amended to
read as follows:
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3. Upon approval by the board, by a majority of its members, any coun-
ty outside the [city] CITIES of New York AND STATEN ISLAND acting
through its county executive, and upon approval of the local legislative
body, may submit a proposed service plan to the office for approval. The
city of New York acting through the mayor and upon approval by the board
of estimate AND THE CITY OF STATEN ISLAND ACTING THROUGH THE MAYOR AND
UPON APPROVAL BY THE COMMON COUNCIL may submit a proposed service plan
to the office for approval.
§ 8-009. Subdivisions 1 and 2 of section 266 of the executive law, as
added by chapter 338 of the laws of 1989, are amended to read as
follows:
1. Counties and the [city] CITIES of New York AND STATEN ISLAND may
submit approved amendments for alcohol and substance abuse programs as
defined in this article as part of or in addition to an approved plan.
In accordance with this article, nothing in this section shall prohibit
the development of regional alcohol and substance abuse programs by two
or more counties, THE CITY OF STATEN ISLAND or cities with a population
of one million or more.
2. Such approved amendments shall include a statement by the county or
the city of New York OR THE CITY OF STATEN ISLAND indicating such
municipality's understanding that funding for eligible alcohol and
substance abuse programs shall be in accordance with subdivision four of
this section and the municipality's commitment to meet the funding
requirements as set forth in such subdivision.
§ 8-010. Section 267 of the executive law, as amended by section 33 of
part A of chapter 56 of the laws of 2010, is amended to read as follows:
§ 267. Office reports. The office shall submit to the governor, the
temporary president of the senate, the speaker of the assembly, the
[chairman] CHAIRPERSON of the senate crime and correction committee and
the [chairman] CHAIRPERSON of the assembly committee on codes by October
first of each year its evaluation and assessment of this alternatives
planning and programming effort by the counties. Such report shall
include, but not be limited to, the status of the development of such
plans, the approval and implementation of such plans, the success of the
programs, in terms of their utilization, effect on jail population,
results of the analyses provided counties and the [city] CITIES of New
York AND STATEN ISLAND on the relationship between alcohol, drugs and
crime and the success of the eligible alcohol and substance abuse
programs and sentencing decisions together with any recommendations with
respect to the proper operation or improvement of planning and implemen-
tation of effective alternatives to detention and alternatives to incar-
ceration programs in counties.
§ 8-011. Subdivisions 1 and 7 of section 530 of the executive law,
subdivision 1 as amended by section 4 of subpart B of part Q of chapter
58 of the laws of 2011, subdivision 7 as amended by section 21 of part K
of chapter 56 of the laws of 2019, are amended to read as follows:
1. Definitions. As used in this section, the term "municipality" shall
mean a county, THE CITY OF STATEN ISLAND or a city having a population
of one million or more.
7. The agency administering detention for each county AND THE CITY OF
STATEN ISLAND and the city of New York shall submit to the office of
children and family services, at such times and in such form and manner
and containing such information as required by the office of children
and family services, an annual report on youth remanded pursuant to
article three or seven of the family court act who are detained during
each calendar year including, commencing January first, two thousand
A. 10030 98
twelve, the risk level of each detained youth as assessed by a detention
risk assessment instrument approved by the office of children and family
services provided, however, that the report due January first, two thou-
sand twenty-one and thereafter shall not be required to contain any
information on youth who are subject to article seven of the family
court act. The office may require that such data on detention use be
submitted to the office electronically. Such report shall include, but
not be limited to, the reason for the court's determination in accord-
ance with section 320.5 or seven hundred thirty-nine of the family court
act to detain the youth; the offense or offenses with which the youth is
charged; and all other reasons why the youth remains detained. The
office shall submit a compilation of all the separate reports to the
governor and the legislature.
§ 8-012. Subdivisions 1, 2 and 4 of section 214 of the elder law are
amended to read as follows:
1. Definitions. As used in this section, the following words shall
have the following meanings:
(a) "Designated agency" shall mean an agency which is designated by
the chief executive officer of the county if there be one, or otherwise
the governing board of such county, or the chief executive officer of
the city of New York OR THE MAYOR OF THE CITY OF STATEN ISLAND, or the
governing board of an Indian tribal council; which is either a unit of
county government or the city of New York OR THE CITY OF STATEN ISLAND
or an Indian tribal organization or a private non-profit agency, and
which is the area agency on aging created pursuant to the federal older
Americans act of 1965.
(b) "Elderly person" shall mean a person sixty years of age or older.
(c) "County" shall mean a county, as defined in section three of the
county law, except that the city of New York shall be considered one
county.
(d) "Base year expenditures" and "base year services" shall mean the
level of expenditures and services in the year prior to the first year
for which a county plan is submitted or in such county's two thousand
five fiscal year, whichever is greater.
(e) "Community services" shall mean services for elderly persons which
are provided by a public or governmental agency or non-profit agency,
and which are provided in the home of an elderly person or in community
settings such as senior citizens centers, housing projects, or agency
offices. Such services shall not include any services provided pursuant
to the public health law other than home care services.
(f) "Community service projects" shall mean community services
financed pursuant to paragraph (b) of subdivision four of this section.
(g) "County plan" shall mean a plan for community services prepared by
a county pursuant to this section.
(h) "Non-profit agency" shall mean a corporation organized or existing
pursuant to the not-for-profit corporation law.
(i) "Program year" shall mean the period from April first through
March thirty-first of the following calendar year.
(j) "First program year" for a county shall mean the initial year for
which the county has received approval for its county plan.
2. County plans for improving the availability of community services
to the elderly. (a) Counties with a designated agency are required to
submit a county plan for a two-, three-, or four-year period determined
by the director, with an annual update containing a budget request for
the forthcoming program year and such other information as shall be
required by the director, for improving the delivery of community
A. 10030 99
services for elderly persons in the format prescribed by the director.
The plan for the city of New York OR THE PLAN FOR THE CITY OF STATEN
ISLAND shall specifically address the needs of each county within such
city. Such plan shall be a comprehensive description of the manner in
which the county intends to address the needs of elderly persons living
in the county through improved coordination of existing community
services and by the development of any new or expanded community service
projects which will improve the delivery of services to the elderly.
Such plan shall contain:
(1) a statement of goals and objectives for addressing the needs of
elderly persons in the county, an assessment of the needs of elderly
persons residing in the county, a description of public and private
resources that currently provide community services to elderly persons
within the county, a description of intended actions to consolidate and
coordinate existing community services administered by county govern-
ment, a description of the intended actions to coordinate congregate
services programs for the elderly operated within the county pursuant to
section two hundred seventeen of this title with other community
services for the elderly, a description of the means to coordinate other
community services for elderly persons in the county with those adminis-
tered by county government, and a statement of the priorities for the
provision of community services during the program period covered by
such plan;
(2) an identification of community service projects to be developed to
improve the delivery of services, a budget request for approval for the
forthcoming year which individually identifies each community service
project to be funded pursuant to paragraph (b) of subdivision four of
this section, letters of comment from the appropriate local agencies on
the relationship and expected impact of the proposed community service
projects, assurances that community service projects will provide
services to those most in need, an indication of fee schedules by which
elderly persons participating in community service projects may contrib-
ute to the costs of such projects, and an indication of how the effec-
tiveness of such community service projects will be evaluated;
(3) an identification of planning, coordination, and administrative
activities necessary to achieve the goals and objectives of the plan,
together with a budget request for such activities for approval for the
forthcoming year to be funded pursuant to paragraph (a) of subdivision
four of this section, and assurances by the county that it will comply
with the requirements of state and federal law; and
(4) such other components as may be required pursuant to regulations
promulgated by the director.
(b) Such county plan for community services or annual update shall be
prepared by the designated agency and approved by the chief executive
officer of the county, if there be one, or otherwise the governing board
of the county, or the chief executive of the city of New York OR THE
MAYOR OF THE CITY OF STATEN ISLAND and submitted to the director no
later than ninety days prior to the beginning of the program period
covered by such plan or annual update. Prior to a submission of a coun-
ty plan or annual update to the director for approval, the designated
agency shall conduct such public hearings as may be required by regu-
lations of the director, provided that there shall be at least one such
hearing, and one in each county contained within the city of New York OR
THE CITY OF STATEN ISLAND.
(c) The director shall review such county plan and may approve or
disapprove such plan, or any part, program, or project within such plan,
A. 10030 100
and shall propose such modifications and conditions as are deemed appro-
priate and necessary. Compliance with paragraphs (a) and (b) of this
subdivision shall be the basis for approval of a county plan. The direc-
tor shall establish by regulation the dates for notifying the designated
agency of approval or disapproval of a county plan. In the event the
director shall disapprove the proposed county plan, the county submit-
ting such application shall be afforded an opportunity for an adjudica-
tory hearing, as prescribed by article three of the state administrative
procedure act.
(d) Notwithstanding any provision of this section, nothing contained
in this section shall give the director or a designated agency any
administrative, fiscal, supervisory, or other authority whatsoever over
any plans, programs or expenditures authorized pursuant to titles eigh-
teen, nineteen and twenty of the federal social security act, or over
any unit of state or local government.
(e) Counties with a designated agency may submit to the director a
letter of intent, in the form and by the date prescribed by the director
with the approval of the director of the budget, evidencing the commit-
ment of the county to develop a county home care plan for functionally
impaired elderly.
(f) Within the amounts appropriated therefor, counties submitting an
approved letter of intent pursuant to paragraph (e) of this subdivision
shall be eligible for reimbursement of one hundred percent of the
approved expenditures for preparing a county home care plan for func-
tionally impaired elderly. Such a grant-in-aid shall be available to a
county only once and shall be limited to one-half the amount available
to such county pursuant to subparagraph one of paragraph (a) of subdivi-
sion four of this section; provided however that in either of the two
years immediately following its first submission of a home care plan for
functionally impaired elderly, a county which does not receive state aid
during such year for expanded non-medical in-home services, non-institu-
tional respite services, case management services, and ancillary
services pursuant to paragraph (j) of subdivision four of this section,
may apply for reimbursement of one hundred percent of the approved
expenditures for revising such home care plan, limited to one-quarter
the amount available to such county pursuant to subparagraph one of
paragraph (a) of subdivision four of this section.
(g) County home care plans for functionally impaired elderly prepared
pursuant to this subdivision shall include a comprehensive description
of all aspects of home care, non-institutional respite, case management,
and ancillary services available to elderly persons in the county; a
description of intended actions to coordinate such home care, non-insti-
tutional respite, case management, and ancillary services to func-
tionally impaired elderly persons in their county provided under this
section with other services to elderly persons; a proposal for expanded
non-medical in-home services, non-institutional respite services, case
management services, and ancillary services for functionally impaired
elderly persons with unmet needs to support such persons' continued
residence in their homes; and such other components as may be required
pursuant to regulations promulgated by the director, including how the
proposed expanded non-medical in-home services, non-institutional
respite services, case management services, and ancillary services will
be delivered to unserved or underserved populations.
(h) Such county home care plan for functionally impaired elderly shall
be prepared by the designated agency after consultation with the social
services district and the local public health agency, and shall be
A. 10030 101
approved by the chief executive officer of the county, if there be one,
or otherwise the governing board of the county, or the chief executive
of the city of New York OR THE MAYOR OF THE CITY OF STATEN ISLAND, and
submitted to the director for approval by such date as may be specified
by regulation. The director shall not approve such county home care plan
for functionally impaired elderly unless it complies with the standards
and regulations issued pursuant to this section.
4. State aid. (a) County plans for improving the availability of
community services to the elderly:
(1) within the amounts appropriated therefor, counties with an
approved county plan shall be eligible for reimbursement of one hundred
percent of the annual approved expenditures for the preparation and
revision of such county plan, evaluation of projects contained within
such county plan, execution of interagency agreements necessary to carry
out the plan, actions to consolidate, combine or collocate services
within the county, and such other costs of the designated agency neces-
sary to implement such county plan, provided that the total annual
amount payable to a county pursuant to this subparagraph shall not
exceed the sum of one dollar for each elderly person residing in the
county, or seventy-five thousand dollars, whichever is less, and further
provided that for the city of New York OR THE CITY OF STATEN ISLAND such
amount shall not exceed one dollar for each elderly person residing in
[the] SUCH city or three hundred seventy-five thousand dollars, whichev-
er is less. Notwithstanding the foregoing limitations, counties with a
population of less than twenty thousand elderly persons shall be eligi-
ble for reimbursement of one hundred percent of such annual approved
expenditures provided that the total annual amount of such reimbursement
per county shall not exceed twenty thousand dollars.
(2) within the amounts appropriated therefor, a county may receive a
grant-in-aid of up to twenty-five per centum of the total annual amount
that such county is eligible to receive pursuant to subparagraph one of
this paragraph for the cost of preparing an initial county plan in
accordance with this section. Such a grant-in-aid shall be available to
a county only once and shall be in addition to the reimbursement
received by the county pursuant to subparagraph one of this paragraph
for the first program year. A request for such a grant-in-aid shall be
accompanied by a letter of intent in the form prescribed by the director
evidencing the commitment of the county to develop a county plan for
community services and shall be submitted to the director at least six
months prior to the beginning of the first program year.
(b) Community service projects:
(1) within the amounts appropriated therefor, counties having an
approved county plan shall be eligible for reimbursement by the state
for expenditures for approved community service projects pursuant to
this section. Such state reimbursement shall not exceed thirty-three
thousand six hundred dollars or four dollars twenty cents for each
elderly person residing in the county, whichever is greater. The annual
state reimbursement eligibility shall be at a rate of seventy-five
percent of the total annual expenditures for such approved programs.
(2) the director shall provide by regulation that certain non-county
moneys and in-kind equivalents may be used to comprise the county share
of such total annual approved expenditures, provided that such county
share shall not include cost-sharing received from elderly persons
receiving expanded non-medical in-home services, non-institutional
respite services, case management services, and ancillary services
pursuant to paragraph (k) of this subdivision or moneys received from
A. 10030 102
the federal government for services for the elderly allocated to the
states or local governments according to population or other such non-
competitive basis.
(3) the director shall provide by regulation the requirements for any
participant contributions and fee schedules used for community service
projects and the manner for the accounting and use of any such revenue.
(c) Reimbursement pursuant to this section shall not be available for
expenditures for base year services otherwise provided without cost, or
to replace base year expenditures made by the county or any other
service provider irrespective of the source of funds for such services.
(d) Reimbursement shall not be available to community services
projects funded pursuant to paragraph (b) of this subdivision or to
expanded non-medical in-home services, non-institutional respite
services, case management services, and ancillary services funded pursu-
ant to paragraph (j) of this subdivision for services provided to elder-
ly persons who are eligible for or are receiving services to meet their
needs pursuant to titles eighteen, nineteen or twenty of the federal
social security act or any other governmental programs or for services
provided to residents in adult residential care facilities which had
previously been provided by the facility or which are required by law to
be provided by such facility.
(e) For the purpose of determining the amount of state reimbursement
for which a county is eligible pursuant to this section, the last
preceding federal census or other census data approved by the comp-
troller shall be used. Funds appropriated by the state for the purpose
of reimbursement for community services pursuant to this section shall
be apportioned among the counties pursuant to the formula set forth in
paragraph (b) of this subdivision by the director. Funds appropriated by
the state for the purpose of reimbursement for expanded non-medical
in-home services, non-institutional respite services, case management
services, and ancillary services pursuant to this section shall be
apportioned among the counties by the director pursuant to the formula
set forth in paragraph (j) of this subdivision.
(f) The comptroller may withhold the payment of state aid to any coun-
ty in the event that such county alters or discontinues the operations
approved by the director pursuant to this section or otherwise fails to
comply with the regulations or requirements of the director.
(g) Counties shall submit claims for reimbursement after the end of
each month or each quarter as required by and in accordance with proce-
dures prescribed by the director. Reimbursement shall be available for
approved expenditures incurred in accordance with an approved county
plan for community services.
(h) Reimbursement pursuant to subparagraph one of paragraph (b) or
paragraph (j) of this subdivision shall not be available for expendi-
tures for community or expanded non-medical in-home services, non-insti-
tutional respite services, case management services, and ancillary
services to elderly persons in the city of New York AND IN THE CITY OF
STATEN ISLAND unless expenditures for such services are apportioned for
services in each of the counties contained within such city in a manner
which the director has determined by regulation substantially reflects
the proportion that the number of elderly persons in that county bears
to the total number of elderly persons in [the] SUCH city as a whole. In
determining whether reimbursement shall be available under paragraph (g)
of this subdivision, the director shall ensure that expenditures were
apportioned in accordance with the provisions of this paragraph.
A. 10030 103
(i) The director, within the amounts appropriated therefor and with
the approval of the director of the budget, may authorize a county which
has an approved home care plan for functionally impaired elderly to
provide expanded non-medical in-home services, non-institutional respite
services, case management services, and ancillary services pursuant to
such plan. Such services shall be limited to those services necessary to
meet otherwise unmet needs and which support such elderly persons'
continued residence in their homes. Needs will be determined pursuant to
a standardized evaluation of functional impairment, available resources
and such other relevant factors specified pursuant to regulations
promulgated by the director. No expanded non-medical in-home services,
non-institutional respite services, or ancillary services shall be
provided to any individual pursuant to this section unless such expanded
non-medical in-home services, non-institutional respite services, or
ancillary services are accompanied by ongoing case management services
in accordance with regulations promulgated by the director.
(j) Within the amounts appropriated therefor, counties authorized to
provide expanded non-medical in-home services, non-institutional respite
services, case management services, and ancillary services pursuant to
paragraph (i) of this subdivision shall be eligible for reimbursement by
the state of up to seventy-five percent of allowable expenditures for
approved services pursuant to this section up to the level authorized by
the director. The director shall not authorize a level of state
reimbursement pursuant to this paragraph which exceeds the sum of nine-
ty-one thousand two hundred fifty dollars or seven dollars thirty cents
for each elderly person residing in the county, whichever is greater,
and shall proportionately reduce such sum for each county in any years
for which appropriations are not sufficient to fully fund approved
expanded non-medical in-home services, non-institutional respite
services, case management services, and ancillary services for func-
tionally impaired elderly in all counties with approved home care plans;
provided however that in state fiscal years beginning on or after the
first day of April, two thousand five, the director, with the approval
of the director of the budget, may authorize state reimbursement in
excess of these levels to the extent appropriations are available there-
for.
(k) The director, with the approval of the director of the budget,
shall provide by regulation the extent of cost-sharing to be required of
elderly persons receiving expanded non-medical in-home services, non-in-
stitutional respite services, case management services, and ancillary
services pursuant to this section, which shall reflect such recipients'
means to pay for such services and which will not affect their ability
to remain in their homes; provided however that the director shall not
authorize or direct the withholding of state aid pursuant to paragraph
(f) of this subdivision prior to the first day of April, two thousand
five, based on any county's failure or inability to comply with regu-
lations promulgated pursuant to this paragraph. The full amount of cost-
sharing actually received by any county from elderly persons receiving
expanded non-medical in-home services, non-institutional respite
services, case management services, and ancillary services shall be used
by such county to expand either such county's program of community
services or such county's program of expanded non-medical in-home
services, non-institutional respite services, case management services,
and ancillary services pursuant to this section.
(l) Reimbursement pursuant to paragraph (j) of this subdivision shall
not be available for expenditures for base year services otherwise
A. 10030 104
provided without cost, or to replace base year expenditures made by the
county or any other service provider irrespective of the source of
funds, or to replace community services expenditures pursuant to para-
graph (b) of this subdivision.
(m) Counties shall submit claims for reimbursement for expanded
in-home services, non-institutional respite services, case management
services, and ancillary services to functionally impaired elderly as
required by and in accordance with procedures prescribed by the direc-
tor. Reimbursement shall be available for approved expenditures
incurred in accordance with an approved county home care plan for func-
tionally impaired elderly to the extent the director has authorized
state aid for such services pursuant to paragraph (i) of this subdivi-
sion.
(n) The director shall provide by regulation that certain non-county
moneys and in-kind equivalents may be used in part to compose the county
share of total allowable expenditures pursuant to paragraph (j) of this
subdivision, provided that such county share shall not include cost-
sharing received from elderly persons receiving expanded non-medical
in-home services, non-institutional respite services, case management
services, and ancillary services pursuant to paragraph (k) of this
subdivision or moneys received from the federal government for services
for the elderly allocated to the states or local governments according
to population or other such non-competitive basis.
§ 8-013. Subdivision 9 of section 140 of the executive law, as amended
by chapter 861 of the laws of 1960, is amended to read as follows:
9. The clerks of the counties of New York, Kings, Queens, Richmond
and Bronx shall each keep a book or card index file in which shall be
registered the signature of the commissioners so filing such certif-
icates; and the county clerk of any county in the city with whom such
commissioner has filed a certificate of appointment shall, upon demand
and upon payment of the sum of fifty cents, authenticate a certificate
of acknowledgment or proof of oath taken before such commissioner of
deeds, without regard to the county in the city in which such [acknowlg-
ment] ACKNOWLEDGMENT or proof was taken or oath administered, by
subjoining or attaching to the original certificate of acknowledgment or
proof or oath a certificate under his hand and official seal specifying
that at the time of taking the acknowledgment or proof or oath the offi-
cer taking it was duly authorized to take the same; that the authenti-
cating officer is acquainted with the former's handwriting, or has
compared the signature on the certificate of acknowledgment, proof or
oath with the autograph signature deposited in his office by such offi-
cer, and that he verily believes the signature is genuine.
§ 8-014. Any person who resides in or maintains an office or other
place of business in the city of Staten Island and who resides in the
county of Richmond on the date of establishment of the city of Staten
Island who holds an appointment as a commissioner of deeds from the
preceding municipality shall be deemed to hold the appointment as
commissioner of deeds from the common council of the city of Staten
Island in accordance with the provisions of section 139 of the executive
law. Such person shall continue to hold such office until his original
appointment expires or is revoked pursuant to law.
§ 8-015. Section 56 of the social services law, as amended by chapter
863 of the laws of 1977, is amended to read as follows:
§ 56. City social services districts. The city of New York AND THE
CITY OF STATEN ISLAND shall have all the powers and duties of a social
services district insofar as consistent with the provisions of the
A. 10030 105
special and local laws relating to such [city] CITIES. The officers
thereof charged with the administration of public assistance and care
shall have additional powers and duties of a commissioner of social
services not inconsistent with the laws relating to said [city] CITIES.
§ 8-016. Section 57 of the social services law, as amended by chapter
863 of the laws of 1977, is amended to read as follows:
§ 57. Cities in county social services districts. Each city, other
than the city of New York AND THE CITY OF STATEN ISLAND, shall form part
of the county social services district of the county in which it is
situated and shall not assume any powers and responsibilities for the
administration or expense of public assistance and care, in addition to
those specified in subdivision two of section sixty-nine, except pursu-
ant to the provisions of sections seventy-four and seventy-four-a of
this chapter.
§ 8-017. Section 61 of the social services law is amended by adding a
new subdivision 1-a to read as follows:
1-A. THE CITY OF STATEN ISLAND IS HEREBY CONSTITUTED A CITY SOCIAL
SERVICES DISTRICT.
§ 8-018. Subdivision 1 of section 74 of the social services law, as
added by chapter 863 of the laws of 1977, is amended to read as follows:
1. Each city, other than the city of New York AND THE CITY OF STATEN
ISLAND, which is responsible for one or more types of public assistance
and care on the date this section becomes effective shall function under
section seventy-four-a of this chapter.
§ 8-019. Section 86-a of the social services law, as amended by chap-
ter 655 of the laws of 1978, is amended to read as follows:
§ 86-a. City public welfare funds. The taxes levied for public
assistance and care in a city, or in a city public welfare district,
shall be paid to the city treasurer, [or] the commissioner of finance in
the city of New York OR THE COMPTROLLER IN THE CITY OF STATEN ISLAND,
and disbursed in accordance with the provisions of law relating to such
city for the payment of bills and claims, provided such provisions of
law are not inconsistent with the provisions of this chapter.
§ 8-020. Intentionally omitted.
§ 8-021. Subdivision 2 of section 209 of the social services law, as
amended by chapter 71 of the laws of 1983, paragraphs (a), (b), (c),
(d), (e) and (f) as amended by section 2 of part Z of chapter 56 of the
laws of 2023, is amended to read as follows:
2. The following amounts shall be the standard of monthly need for
determining eligibility for and the amount of additional state payments,
depending on the type of living arrangement and the geographic area in
which the eligible individual or the eligible couple resides:
(a) On and after January first, two thousand twenty-three, for an
eligible individual living alone, $1,001.00; and for an eligible couple
living alone, $1,475.00.
(b) On and after January first, two thousand twenty-three, for an
eligible individual living with others with or without in-kind income,
$937.00; and for an eligible couple living with others with or without
in-kind income, $1,417.00.
(c) On and after January first, two thousand twenty-three, (i) for an
eligible individual receiving family care, $1,180.48 if he or she is
receiving such care in the city of New York, THE CITY OF STATEN ISLAND
or the county of Nassau, Suffolk, Westchester or Rockland; and (ii) for
an eligible couple receiving family care in the city of New York, THE
CITY OF STATEN ISLAND or the county of Nassau, Suffolk, Westchester or
Rockland, two times the amount set forth in subparagraph (i) of this
A. 10030 106
paragraph; or (iii) for an eligible individual receiving such care in
any other county in the state, $1,142.48; and (iv) for an eligible
couple receiving such care in any other county in the state, two times
the amount set forth in subparagraph (iii) of this paragraph.
(d) On and after January first, two thousand twenty-three, (i) for an
eligible individual receiving residential care, $1,349.00 if he or she
is receiving such care in the city of New York, THE CITY OF STATEN
ISLAND or the county of Nassau, Suffolk, Westchester or Rockland; and
(ii) for an eligible couple receiving residential care in the city of
New York, THE CITY OF STATEN ISLAND or the county of Nassau, Suffolk,
Westchester or Rockland, two times the amount set forth in subparagraph
(i) of this paragraph; or (iii) for an eligible individual receiving
such care in any other county in the state, $1,319.00; and (iv) for an
eligible couple receiving such care in any other county in the state,
two times the amount set forth in subparagraph (iii) of this paragraph.
(e) On and after January first, two thousand twenty-three, (i) for an
eligible individual receiving enhanced residential care, $1,608.00; and
(ii) for an eligible couple receiving enhanced residential care, two
times the amount set forth in subparagraph (i) of this paragraph.
(f) The amounts set forth in paragraphs (a) through (e) of this
subdivision shall be increased to reflect any increases in federal
supplemental security income benefits for individuals or couples which
become effective on or after January first, two thousand twenty-four but
prior to June thirtieth, two thousand twenty-four.
§ 8-022. Subdivision 1 of section 368-e of the social services law, as
amended by section 55 of part B of chapter 58 of the laws of 2009, is
amended to read as follows:
1. The department of health shall review claims for expenditures made
by counties, THE CITY OF STATEN ISLAND and the city of New York for
medical care, services and supplies which are furnished to preschool
children with handicapping conditions or such preschool children
suspected of having handicapping conditions, as such children are
defined in the education law. If approved by the department, payment for
such medical care, services and supplies which would otherwise qualify
for reimbursement under this title and which are furnished in accordance
with this title and the regulations of the department to such children,
shall be made in accordance with the department's approved medical
assistance fee schedules by payment to such county or [city] CITIES
which furnished the care, services or supplies either directly or by
contract. Notwithstanding any provisions of law, rule or regulation to
the contrary, any clinic or diagnostic and treatment center licensed
under article twenty-eight of the public health law, which as determined
by the state education department, in conjunction with the department of
health, has a less than arms length relationship with the provider
approved under section forty-four hundred ten of the education law
shall, subject to the approval of the department and based on standards
developed by the department, be authorized to directly submit such
claims for medical assistance, services or supplies so furnished for any
period beginning on or after July first, nineteen hundred ninety-seven.
The actual full cost of the individualized education program (IEP)
related services incurred by the clinic shall be reported on the New
York State Consolidated Fiscal Report in the education law section
forty-four hundred ten program cost center in which the student is
placed and the associated medical assistance revenue shall be reported
in the same manner.
A. 10030 107
§ 8-023. Subdivision 13 of section 390 of the social services law, as
amended by chapter 160 of the laws of 2003, is amended to read as
follows:
13. Notwithstanding any other provision of law, this section[, except
for paragraph (a-1) of subdivision two-a of this section,] shall not
apply to child day care centers in the city of New York OR IN THE CITY
OF STATEN ISLAND.
§ 9-001. Subdivision 1 of section 214 of the county law, as amended by
chapter 967 of the laws of 1973, is amended to read as follows:
1. Concurrent resolutions, election notices and official canvass.
The members of the county legislative body, whether such body be denomi-
nated board of supervisors, county legislature or otherwise, or, in the
[city] CITIES of New York AND STATEN ISLAND, of the council of EACH such
city representing respectively each of the two principal political
parties into which the people of the state are divided, shall designate
annually the newspaper published within the county to publish the
concurrent resolutions of the legislature. Such designation shall be in
writing and signed by a majority of the members representing each of
said political parties. In making such designation, consideration shall
be given to the newspapers advocating the principles of such political
party, the support of its nominees and the extent of the circulation in
the county. However the fact that a newspaper is an independent newspa-
per not advocating the principles of any political party shall not
disqualify it from consideration. If there be but one newspaper
published in the county, such newspaper shall be designated. The desig-
nation shall be filed with the clerk of the county legislative body or,
in the [city] CITIES of New York AND STATEN ISLAND, with the clerk of
the council of EACH such city, who shall not later than January tenth
cause notice of the name and address of such newspaper or newspapers to
be forwarded to the secretary of state. In like manner the members of
the county legislative body or, in the [city] CITIES of New York AND
STATEN ISLAND, of the council of EACH such city representing each of the
two principal political parties into which the people of the state are
divided, shall designate the newspaper published within the county to
publish the election notices issued by the secretary of state and the
newspaper to publish the official canvass. In the event of a failure so
to designate in any year, or if either of such political parties has no
representatives among the body or, in the [city] CITIES of New York AND
STATEN ISLAND, council membership, the last newspaper designated by the
members of such party shall be deemed duly designated.
§ 9-002. Section 226-a of the county law, as added by chapter 80 of
the laws of 1969, is amended to read as follows:
§ 226-a. Patriotic observances. The county legislature and/or board
of supervisors, as the case may be, of any county or borough outside the
city of New York OR THE CITY OF STATEN ISLAND, is hereby authorized to
appropriate and set aside each year such sums it may deem proper for the
purpose of providing for the due and proper observance of any legal
holiday, including Columbus day.
§ 9-003. Section 361-a of the county law, as amended by chapter 359 of
the laws of 1989, is amended to read as follows:
§ 361-a. Expenses of boards of elections outside New York City AND THE
CITY OF STATEN ISLAND; apportionment of. The board of elections in each
county, outside of the [city] CITIES of New York AND STATEN ISLAND, on
or before the fifteenth day of December and not earlier than the first
day of October, in each year, shall certify to the clerk of the legisla-
tive body of the county, the total amount of the expenses of such board
A. 10030 108
of elections, including salaries for the preceding year, and, if the
legislative body of any county shall so direct, shall certify to such
clerk the portions of such expenses which under provisions of law are to
be borne by any city or cities in said county and the portion thereof
which is to be borne by the rest of such county and such clerk shall
thereupon notify the proper local official or officials, who, in spread-
ing upon the assessment-rolls the taxes to be levied upon the taxable
property in the city or any such cities, and in the rest of the county,
shall include in the amount so spread the amounts certified by the board
of elections to be borne by such city or cities, respectively, and in
the amount spread upon the assessment-rolls of the taxable property in
the several towns or other political subdivisions of the rest of the
county the amount so certified by said board of elections to be borne by
such towns or political subdivisions respectively. Whenever any addi-
tional expenses either for salaries or supplies in addition to the regu-
lar county-wide primary and election expenses are incurred by a board of
elections incidental to any election in any city, town or village, such
board of elections shall certify to the county legislative body a
detailed statement of such expenses and said county legislative body may
cause the amount thereof to be levied against such city, town or village
or may certify the amount thereof to such city, town or village and such
city, town or village shall upon such certification, include the amount
so certified in the next budget and tax levy and shall pay the same to
the county.
§ 9-004. Subdivision 2 of section 390 of the county law, as added by
chapter 1 of the laws of 1951, is amended to read as follows:
2. Whenever a patient admitted to said hospital has local residence,
as defined in the public health law, in the county in which the hospital
is situated, he shall be a charge upon such county. If such patient
admitted to said hospital has local residence in some other county or in
the city of New York OR THE CITY OF STATEN ISLAND, he shall be a charge
upon such other county or the city of New York OR THE CITY OF STATEN
ISLAND, as the case may be, and the superintendent shall send a bill for
such charge to the clerk of the board of supervisors of such other coun-
ty or to the comptroller of the city of New York OR OF THE CITY OF
STATEN ISLAND. Such charge shall be at a rate to be fixed by the board
of managers, which shall not exceed the per diem per capita cost of care
and treatment in said hospital, and if the county operating said hospi-
tal is currently receiving state aid for the care and treatment of
tuberculosis patients pursuant to the public health law, such charge may
be an amount for each day of such patient's care equivalent to the
balance of the total per diem per capita cost of operating such hospital
during the preceding fiscal year, as computed and approved by the state
commissioner of health [pursuant to subdivision three of section fifty-
four of the public health law]. Such bill shall be audited and paid by
the board of supervisors of said county, except that a bill so submitted
to the city of New York OR THE CITY OF STATEN ISLAND shall be paid by
such city after audit and upon warrant of the comptroller of such city.
Any patient admitted to said hospital may pay for his care and treatment
in whole or in part if he volunteers to do so.
§ 9-005. Section 391 of the county law, as added by chapter 1 of the
laws of 1951, is amended to read as follows:
§ 391. Admission of out of county patients. 1. Exclusive of the
city of New York AND THE CITY OF STATEN ISLAND, and exclusive of coun-
ties served by state tuberculosis hospitals, any person in a county not
having a county hospital for the care and treatment of persons suffering
A. 10030 109
from tuberculosis may apply in person to the clerk of the board of
supervisors of such county or to the state commissioner of health for
admission to a tuberculosis hospital, providing that such person submit
with such application a statement signed by a reputable physician that
such physician has, within the ten days preceding the date of such
application, examined such person and that, in his opinion, such person
is suffering from tuberculosis or is suspected of having tuberculosis
and is in need of care and treatment therefor. Upon receipt of such
application, the clerk of the board of supervisors or the state commis-
sioner of health, as the case may be, shall forward the same to the
superintendent of any state, county or city hospital for the care and
treatment of tuberculosis.
2. Whenever the superintendent of such a hospital shall receive an
application for the admission of a patient in accordance with the
provisions of subdivision one of this section, if it appear from such
application that the person therein referred to is suffering from tuber-
culosis or is suspected of having tuberculosis and is in need of care
and treatment therefor, the superintendent shall notify said person to
appear in person at the hospital, provided there be a vacancy in such
hospital and there be no pending application from a patient living in
the county in which the hospital is located. If, upon personal examina-
tion of the patient, the superintendent is satisfied that such patient
is in need of care and treatment for tuberculosis, he shall admit him to
the hospital. Every patient so admitted shall be a charge against the
county in which he was living immediately prior to such admission. Such
charge shall be at a rate to be fixed by the board of managers, which
shall not exceed the per diem per capita cost of maintenance therein and
any cost of transportation to or from the hospital, except that if the
county operating said hospital is currently receiving state aid for the
care and treatment of tuberculosis patients pursuant to the public
health law, such charge shall be an amount for each day of such
patient's care equivalent to the balance of the total per diem per capi-
ta cost of operating such hospital during the preceding fiscal year, as
computed and approved by the state commissioner of health [pursuant to
subdivision three of section fifty-four of the public health law]; and
the bill therefor shall be audited and paid by the board of supervisors
of the said county. However, if such patient has local residence, as
defined in the public health law, in some county other than the one in
which he was living immediately prior to such admission or in the city
of New York OR THE CITY OF STATEN ISLAND, he shall be a charge upon such
other county or the city of New York OR THE CITY OF STATEN ISLAND, as
the case may be, and in this event any amounts for the cost of such care
and treatment which shall have been paid by the county from which he was
admitted shall be charged back and reimbursed to such county by the
aforesaid other county or the city of New York OR THE CITY OF STATEN
ISLAND in which the patient has local residence. Any patient admitted
to a hospital in accordance with the provisions of subdivision one of
this section may pay for his care and treatment in whole or in part if
he volunteers to do so.
§ 9-006. Section 901 of the county law is amended by adding a new
subdivision 1-a to read as follows:
1-A. THE COMMISSIONER OF CORRECTIONS OF THE CITY OF STATEN ISLAND
SHALL HAVE CUSTODY OF THE CIVIL JAILS AND PERSONS LAWFULLY COMMITTED TO
HIS OR HER CUSTODY AND SUCH JAILS SHALL BE KEPT BY HIM OR HER, OR BY
KEEPERS APPOINTED BY HIM OR HER, FOR WHOSE ACTS HE OR SHE SHALL BE
RESPONSIBLE.
A. 10030 110
§ 9-007. Subdivision 1 of section 902 of the county law, as amended by
chapter 950 of the laws of 1956, is amended to read as follows:
1. The offices of the county clerk in the counties constituting the
city of New York AND THE OFFICE OF THE RICHMOND COUNTY CLERK shall
remain open for the transaction of business from nine o'clock in the
forenoon to four o'clock in the afternoon every day except Saturdays,
Sundays and holidays and except in the months of July and August when
said offices shall remain open for the transaction of business from nine
o'clock in the forenoon to two o'clock in the afternoon except Satur-
days, Sundays and holidays.
§ 9-008. Section 904 of the county law, as amended by chapter 655 of
the laws of 1978, is amended to read as follows:
§ 904. Court and trust fund register and liability of officers. The
county clerks of the counties comprising the city of New York AND THE
RICHMOND COUNTY CLERK shall perform the same duties and shall be subject
to the same penalties imposed by the provisions of this chapter upon
other county clerks of the state with relation to court and trust fund
registers and the delivery of property or moneys to the commissioner of
finance in pursuance of any judgment, decree or order of a court of
record of this state.
§ 9-009. The county law is amended by adding a new section 905-a to
read as follows:
§ 905-A. LIABILITY FOR LOSS OF COURT AND TRUST FUNDS IN THE CITY OF
STATEN ISLAND. THE OFFICER RESPONSIBLE FOR COLLECTION AND MANAGEMENT OF
PUBLIC FUNDS FOR THE CITY OF STATEN ISLAND AND SUCH OFFICER'S SURETY OR
SURETIES SHALL BE LIABLE IN THE SAME MANNER AS COUNTY TREASURERS ARE
MADE LIABLE UNDER THE PROVISIONS OF THIS CHAPTER FOR THE LOSS OF COURT
AND TRUST FUNDS.
§ 9-010. The county law is amended by adding a new section 906-a to
read as follows:
§ 906-A. LIABILITY OF CITY OF STATEN ISLAND FOR LOSS OF COURT AND
TRUST FUNDS. THE CITY OF STATEN ISLAND SHALL BE RESPONSIBLE FOR ALL
PROPERTY OR MONEYS DEPOSITED WITH THE OFFICER RESPONSIBLE FOR COLLECTION
AND MANAGEMENT OF PUBLIC FUNDS FOR THE CITY OF STATEN ISLAND BY VIRTUE
OF ANY JUDGMENT, DECREE OR ORDER OF A COURT OF RECORD IN THIS STATE
PROVIDED, HOWEVER, THAT THE CITY SHALL NOT BE HELD LIABLE FOR ANY LOSS
DUE TO THE DEPRECIATED VALUE OF AN INVESTMENT LEGAL AT THE TIME OF ITS
PURCHASE AND WHICH CONTINUED TO BE A LEGAL INVESTMENT DURING THE PERIOD
OF THE TRUST. AN ACTION TO RECOVER ANY LOSS TO OR OF SUCH FUND MAY BE
BROUGHT AGAINST THE CITY BY ANY PARTY AGGRIEVED OR BY THE STATE COMP-
TROLLER IN A COURT OF COMPETENT JURISDICTION.
§ 9-011. The county law is amended by adding a new section 931-a to
read as follows:
§ 931-A. EMPLOYEES OF THE DISTRICT ATTORNEY OF THE COUNTY OF RICH-
MOND. THE DISTRICT ATTORNEY OF RICHMOND COUNTY IS VESTED WITH THE POWER
TO APPOINT ANY PERSON TO ANY POSITION FOR WHICH THERE IS NOW PROVISION
BY APPROPRIATION OR WHICH SHALL HEREAFTER BE ESTABLISHED. ALL POSITIONS
IN THE DISTRICT ATTORNEY'S OFFICE OF RICHMOND COUNTY FOR WHICH THERE IS
NOW PROVISION BY APPROPRIATION SHALL BE CONTINUED, EXCEPT THAT THE MAYOR
OF THE CITY OF STATEN ISLAND MAY WITH THE CONSENT OF THE DISTRICT ATTOR-
NEY INCREASE OR DECREASE THE NUMBER OF POSITIONS AND THE TERM, GRADE,
SALARY AND COMPENSATION OF ANY POSITION.
§ 9-012. The county law is amended by adding a new section 944 to read
as follows:
§ 944. APPLICABILITY OF ARTICLE TO THE COUNTY OF RICHMOND. FOR THE
PURPOSES OF CONTINUING THE APPLICATION OF THIS ARTICLE WITHIN THE CITY
A. 10030 111
OF STATEN ISLAND ON AND AFTER THE DATE OF ESTABLISHMENT OF THE CITY OF
STATEN ISLAND, THE COUNTY OF RICHMOND SHALL BE DEEMED TO CONTINUE AS A
COUNTY WITHIN THE CITY OF NEW YORK FOR THE PURPOSES OF EXERCISING THOSE
POWERS AND DUTIES DEVOLVED UPON SAID COUNTY OF RICHMOND PURSUANT TO THIS
ARTICLE.
§ 9-013. Subdivision 2 and paragraphs (a) and (c) of subdivision 3 of
section 9-124 of the election law, subdivision 2 as amended by chapter
437 of the laws of 2019, paragraphs (a) and (c) of subdivision 3 as
amended by chapter 481 of the laws of 2023, are amended to read as
follows:
2. Each box, envelope, or container containing the ballots and stubs,
if any, and all items described in subdivision one of this section shall
be deposited by an inspector designated for that purpose with the offi-
cer or board from whom or which the board of inspectors received it. In
the city of New York AND THE CITY OF STATEN ISLAND, every such box,
envelope, or container shall be delivered at the polling place to police
or peace officers designated by the police commissioner of such [city]
CITIES, who shall deposit them with the APPROPRIATE board of elections.
(a) Except in the city of New York OR THE CITY OF STATEN ISLAND, the
registration poll records or computer generated registration lists, the
returns of canvass with results tapes and tally sheets, if any, annexed,
the voted ballots, stubs, opened packages of unused ballots and ballot
envelopes, any early mail, absentee, military, special federal, or
special presidential ballots which may have been delivered to the poll
site during election day, the challenge report records, keys and the
package of protested and void ballots shall be filed with the APPROPRI-
ATE board of elections.
(c) In the city of New York AND THE CITY OF STATEN ISLAND, the board
of inspectors shall deliver to police or peace officers designated by
the police commissioner of such [city] CITIES, at the polling place the
registration poll records or computer generated registration lists,
challenge report, records, keys, other election supplies, including two
copies of the returns of the canvass and any early mail, absentee, mili-
tary, special federal, or special presidential ballots which may have
been delivered to the poll site during election day, voted ballots,
stubs, open packages of unused ballots and ballot envelopes. Such police
or peace officers shall file the returns, the package of void and
protested ballots, if any, and the early mail, absentee, military,
special federal, or special presidential ballots which may have been
delivered to the poll site during election day; and emergency ballots,
stubs and ballot envelopes, if any, within twenty-four hours after the
close of the polls, in the office of the APPROPRIATE board of elections
or its branch office within the borough, as the case may be.
§ 9-014. Subdivision 3 of section 9-124 of the election law is amended
by adding a new paragraph (d) to read as follows:
(D) IN THE CITY OF STATEN ISLAND THE BOARD OF INSPECTORS, SHALL DELIV-
ER TO THE POLICE OR PEACE OFFICER AT THE POLLING PLACE THE REGISTRATION
POLL RECORDS OR COMPUTER GENERATED REGISTRATION LISTS, CHALLENGE REPORT,
RECORDS, KEYS, THE FLAG, OTHER ELECTION SUPPLIES, THE RETURNS OF THE
CANVASS AND THE ABSENTEE AND MILITARY, SPECIAL FEDERAL, SPECIAL PRESI-
DENTIAL AND EMERGENCY BALLOTS, STUBS AND BALLOT ENVELOPES. THE POLICE
OR PEACE OFFICER SHALL FILE THE RETURNS, THE PACKAGE OF VOID, PROTESTED
AND WHOLLY BLANK BALLOTS, IF ANY, AND THE ABSENTEE AND MILITARY, SPECIAL
FEDERAL, SPECIAL PRESIDENTIAL AND EMERGENCY BALLOTS, STUBS AND BALLOT
ENVELOPES, IF ANY, WITHIN TWENTY-FOUR HOURS AFTER THE CLOSE OF THE
POLLS, IN THE OFFICE OF THE BOARD OF ELECTIONS.
A. 10030 112
§ 9-015. Section 88-b of the state finance law, as added by chapter 13
of the laws of 1987, subdivisions 2 and 6 as amended by chapter 65 of
the laws of 1988, is amended to read as follows:
§ 88-b. Suburban transportation fund. 1. There is hereby established
in the joint custody of the commissioner of taxation and finance and the
comptroller a fund to be known as the "suburban transportation fund".
2. The suburban transportation fund shall consist of moneys from the
commuter railroad account of the metropolitan transportation authority
special assistance fund required to be paid by such authority to the
suburban transportation fund pursuant to subdivision three of section
twelve hundred seventy-a of the public authorities law and any moneys
from the metropolitan transportation authority Dutchess, Orange and
Rockland fund transferred pursuant to subdivision four of section twelve
hundred seventy-a of the public authorities law.
3. Moneys in the suburban transportation fund shall be kept separate
from and shall not be commingled with any other moneys in the custody of
the commissioner of taxation and finance and the comptroller. All depos-
its of such money shall, if required by the comptroller, be secured by
obligations of the United States or of the state of market value equal
at all times to the amount of the deposit and all banks and trust compa-
nies are authorized to give such securities for such deposits.
4. Moneys of the fund shall be made available for financing any of the
following types of capital projects within the counties comprising the
metropolitan commuter transportation district, except those counties
comprising the city of New York OR THE CITY OF STATEN ISLAND, but only
to the extent that such projects are on an adopted transportation plan
and approved by a designated transportation coordinating committee, if
one exists, or by the metropolitan planning organization as created
pursuant to section fifteen-a of the transportation law if no designated
transportation coordinating committee exists: capacity and infrastruc-
ture improvements to state, county, town, city, village roads, highways,
parkways and bridges; or state, county, town, city or village mass
transportation projects; provided, however, that in Nassau and Suffolk
counties such moneys shall be available only for capacity improvements
to state roads, highways, parkways and bridges. The amount of state
funds historically appropriated statewide, other than bond funds, for
transportation capital purposes from other sources shall not be reduced
because of the availability of such moneys made available pursuant to
this chapter, nor shall such moneys be used to match federal aid. Prior
to the allocation of state advance funds appropriated pursuant to this
section, the municipality responsible for the project shall certify to
the commissioner of transportation that the amount of funds appropriated
for transportation capital purposes by that municipality shall not be
reduced because of the availability of such state advance funds, and
that such moneys shall not be used to match federal aid.
The designated transportation coordinating committee, if one exists,
or the metropolitan planning organization if no designated transporta-
tion coordinating committee exists, shall notify the municipalities
within its jurisdiction of which projects it has approved.
5. In the event that any county withdraws from the metropolitan commu-
ter transportation district, the withdrawing county shall pay to the
state comptroller any amount that is required so that the state is fully
reimbursed for funds advanced in anticipation of reimbursement from the
suburban transportation fund. In the event that any withdrawing county
shall fail to make a payment pursuant to this subdivision, the state
comptroller shall withhold and pay to the capital projects fund an
A. 10030 113
amount equal to the amount owed from the next general or specific state
aid payment and scheduled to be paid to that county.
6. Moneys in the suburban transportation fund transferred pursuant to
section twelve hundred seventy-a of the public authorities law shall be
made available to the state department of transportation for capital
projects in the counties of Nassau, Suffolk, Westchester, Putnam, Dutch-
ess, Orange and Rockland on the basis of each county's average pro rata
share of the mortgage recording tax receipts raised in such counties
pursuant to subdivision one of section two hundred sixty-one of the tax
law during the period January first, nineteen hundred eighty-four
through December thirty-first, nineteen hundred eighty-six as certified
by the metropolitan transportation authority. Moneys transferred to the
suburban transportation fund at the request of Dutchess, Orange or Rock-
land county pursuant to subdivision three of section twelve hundred
seventy-b of the public authorities law shall be used by the state
department of transportation to increase the proportionate share of such
capital projects in such county. Such projects shall be financed by
means of a state advance to be reimbursed by the New York state thruway
authority, or its successor agency, through the issuance of its bonds or
notes in the manner set forth in subdivision seven of this section, or
by means of a state advance to be reimbursed directly from the suburban
transportation fund.
7. (a) For projects funded by the suburban transportation fund, the
state department of transportation may enter into an agreement with the
New York state thruway authority, or its successor agency, for the
purpose of having the thruway authority, or its successor agency, issue
bonds or notes to pay the capital costs of such project. Such agreement
shall be subject to approval by the director of the division of the
budget.
(b) For projects funded pursuant to this subdivision, the affected
municipality shall enter into an agreement with the department of trans-
portation for the conveyance of all affected real property including
highways, roads and bridges to the thruway authority, or its successor
agency, for the term of the bonds or notes issued by the thruway author-
ity, or its successor agency, for such project or for such lesser period
that such bonds or notes are outstanding. During the period of such
conveyance to the thruway authority, or its successor agency, the
department of transportation or the municipality shall agree to maintain
the facility in a state of good repair, the responsibility for which
shall be with the state, or municipality, which had jurisdiction over
said facility prior to such agreement.
(c) Upon the final retirement of all bonds and notes issued by the
thruway authority, or its successor agency, for such purpose, such prop-
erty shall automatically revert to the conveying entity.
8. Payments to the thruway authority, or its successor agency, pursu-
ant to this section shall be subject to appropriation from the suburban
transportation fund. The thruway authority, or its successor agency,
shall utilize such moneys to pay the debt service on such bonds or notes
and to meet administrative costs in connection therewith.
§ 9-016. Section 2302 of the surrogate's court procedure act, as
amended by chapter 460 of the laws of 1999, is amended to read as
follows:
§ 2302. Award of costs and allowances
1. Upon a motion the court may award costs to any party in such
amount as it determines not exceeding $20 to each party, except in coun-
A. 10030 114
ties within the City of New York AND IN THE CITY OF STATEN ISLAND, where
such amount shall not exceed $40.
2. Upon rendering a decree or in granting or denying an application
to vacate a decree the court may award as costs such sum as it deems
reasonable to the petitioner and to any other party who has succeeded in
whole or in part in a contest or whose attorney, in the absence of a
contest, has rendered services of substantial benefit to him, her or it,
or to the estate, not exceeding
(a) in counties within the City of New York AND IN THE CITY OF STATEN
ISLAND:
(i) $100 where there has not been a contest, or
(ii) $300 where there has been a contest and $300 for each day, less
one, necessarily occupied in the trial or hearing and in addition $100
for each day necessarily occupied in preparing therefore and $100 addi-
tional if a motion for a new trial is granted.
(b) in all other counties:
(i) $50 where there has not been a contest, or
(ii) $150 where there has been a contest and $150 for each day, less
one, necessarily occupied in the trial or hearing and in addition $50
for each day necessarily occupied in preparing therefore and $50 addi-
tional if a motion for a new trial is granted.
3. In a contested probate proceeding:
(a) Costs payable out of the estate or otherwise may be awarded (1) to
an unsuccessful contestant only if he, she or it be a guardian ad litem
or guardian, committee or conservator of a person under disability; (2)
to an unsuccessful proponent named as executor in the will when
propounded by him, her or it in good faith as the last will of the dece-
dent; and (3) to a person named as executor in a prior will on file in
the court that is not admitted to probate when such person participates
in the proceeding in good faith. Such nominated executor, guardian ad
litem, guardian, committee or conservator, whether successful or not may
be awarded costs and an allowance in such sum as the court deems reason-
able for his, her or its counsel fees and other expenses incurred in the
contest or attempt to sustain the will. The court may direct that such
costs and allowances in whole or in part be payable by an unsuccessful
contestant except that an award of the successful proponent's counsel's
fees may only be allowed where the court finds that the contest was
brought in bad faith or was frivolous.
(b) Either before or after the decree granting probate the court may
order that a copy of the minutes of the trial be furnished to a contes-
tant for the purposes of appeal and charge the expense thereof initially
to the estate if satisfied that the contest is in good faith. If the
contestant be unsuccessful upon the appeal and he, she or it is not the
guardian of an infant, the committee of an incompetent, the conservator
of a conservatee or a guardian ad litem he, she or it shall refund to
the estate any amount so paid by the estate for the minutes.
4. In a proceeding for probate of a will when the public administra-
tor or county treasurer has been directed to probate a will or continue
the proceedings for the probate thereof, the court may award to either
of them such sum as it deems reasonable for his, her or its counsel fees
and other expenses necessarily incurred therein.
5. After appeal, pursuant to the direction of the appellate court the
court may award a fiduciary such sum as it deems reasonable for counsel
fees and other expenses necessarily incurred on the appeal.
6. In a proceeding to construe a will or after appeal in such a
proceeding, pursuant to the direction of the appellate court the court
A. 10030 115
may award to a fiduciary or any party to the proceeding such sum as it
deems reasonable for his, her or its counsel fees and other expenses
necessarily incurred in the proceeding or on the appeal.
7. Upon a final or intermediate judicial settlement a fiduciary may
be awarded for his, her or its expenses and counsel fees such sum as the
court deems reasonable not exceeding:
(a) within the counties of the City of New York AND IN THE CITY OF
STATEN ISLAND: $100 for each day necessarily occupied in preparing the
account and in drawing, entering and executing the decree. Any sum so
awarded may be in addition to any costs, allowances or commissions
otherwise authorized and awarded by the court.
(b) in all other counties: $ 50 for each day necessarily occupied in
preparing the account and in drawing, entering and executing the decree.
Any sum so awarded may be in addition to any costs, allowances or
commissions otherwise authorized and awarded by the court.
8. In a proceeding for disposition of real property a fiduciary may
be awarded out of the proceeds of sale his, her or its commissions and
such sum as the court deems reasonable for counsel fees and expenses
necessarily incurred in the proceeding.
§ 9-017. The general municipal law is amended by adding a new section
929 to read as follows:
§ 929. CITY OF STATEN ISLAND INDUSTRIAL DEVELOPMENT AGENCY. (A)
LEGISLATIVE INTENT. IT IS THE POLICY AND INTENT OF THE CITY OF STATEN
ISLAND TO PROMOTE THE ECONOMIC WELFARE OF ITS INHABITANTS AND TO ACTIVE-
LY PROMOTE, ATTRACT, ENCOURAGE AND DEVELOP ECONOMICALLY SOUND COMMERCE
AND INDUSTRY THROUGH GOVERNMENTAL ACTION FOR THE PURPOSE OF PREVENTING
UNEMPLOYMENT AND ECONOMIC DETERIORATION BY THE CREATION OF A CITY OF
STATEN ISLAND INDUSTRIAL DEVELOPMENT AGENCY. IT IS RECOGNIZED THAT THE
VIABILITY AND INTEGRITY OF THE RESIDENTIAL COMMUNITIES IN THE CITY OF
STATEN ISLAND SHOULD BE PROTECTED AND MAINTAINED SO THAT NO PERSON BE
DEPRIVED OF HIS OR HER PLACE OF RESIDENCE BY ANY CONDEMNATION FOR
ECONOMIC OR INDUSTRIAL DEVELOPMENT UNDERTAKEN PURSUANT TO THIS ARTICLE.
(B) FOR THE PURPOSE OF THIS SECTION "CITY" MEANS THE CITY OF STATEN
ISLAND.
(C) FOR THE BENEFIT OF THE CITY AND THE INHABITANTS THEREOF AN INDUS-
TRIAL DEVELOPMENT AGENCY, TO BE KNOWN AS THE CITY OF STATEN ISLAND
INDUSTRIAL DEVELOPMENT AGENCY, IS HEREBY ESTABLISHED FOR THE ACCOMPLISH-
MENT OF ANY OR ALL OF THE PURPOSES SPECIFIED IN TITLE ONE OF THIS ARTI-
CLE, EXCEPT THAT IT SHALL NOT HAVE THE POWER TO CONSTRUCT OR REHABILI-
TATE ANY RESIDENTIAL FACILITY OR HOUSING OF ANY NATURE AND KIND
WHATSOEVER, NOR SHALL IT USE ANY OF ITS FUNDS TO FURTHER THE
CONSTRUCTION OR REHABILITATION OF ANY RESIDENTIAL FACILITY OR HOUSING OF
ANY NATURE AND KIND WHATSOEVER. IT SHALL CONSTITUTE A BODY CORPORATE
AND POLITIC, AND BE PERPETUAL IN DURATION. IT SHALL ONLY HAVE THE
POWERS AND DUTIES CONFERRED BY TITLE ONE OF THIS ARTICLE UPON INDUSTRIAL
DEVELOPMENT AGENCIES AS OF JANUARY FIRST, NINETEEN HUNDRED SEVENTY-THREE
EXCEPT IT SHALL NOT HAVE THE POWER OF CONDEMNATION. IN THE EXERCISE OF
THE POWERS CONFERRED UPON SUCH AGENCY WITH RESPECT TO THE ACQUISITION OF
REAL PROPERTY BY THIS ARTICLE SUCH AGENCY SHALL BE LIMITED TO THE
GEOGRAPHICAL JURISDICTIONAL LIMITS OF THE CITY.
(D) IT SHALL BE ORGANIZED IN A MANNER PRESCRIBED BY AND BE SUBJECT TO
THE PROVISIONS OF TITLE ONE OF THIS ARTICLE, EXCEPT THAT ITS BOARD SHALL
CONSIST OF TEN MEMBERS. AMONG ITS MEMBERSHIP SHALL BE THE CITY COMP-
TROLLER, THE CITY COMMISSIONER OF ECONOMIC DEVELOPMENT, THE CORPORATION
COUNSEL OF SUCH CITY AND THE DIRECTOR OF THE CITY PLANNING COMMISSION OF
SUCH CITY, EACH OF WHOM SHALL HAVE THE POWER TO DESIGNATE AN ALTERNATE
A. 10030 116
TO REPRESENT THEM AT BOARD MEETINGS WITH ALL THE RIGHTS AND POWERS,
INCLUDING THE RIGHT TO VOTE, RESERVED TO ALL BOARD MEMBERS, PROVIDED
THAT SUCH DESIGNATION BE IN WRITING TO THE CHAIRPERSON OF THE BOARD.
THE REMAINING SIX MEMBERS SHALL BE APPOINTED BY THE MAYOR OF SUCH CITY.
(E) THE MAYOR SHALL DESIGNATE THE CHAIRPERSON OF THE BOARD, WHO SHALL
SERVE AT THE PLEASURE OF THE MAYOR.
(F) THE TERMS OF THE DIRECTORS FIRST APPOINTED BY THE MAYOR, OTHER
THAN THE CHAIRPERSON OF THE BOARD SHALL BE AS FOLLOWS:
(1) TWO SHALL SERVE FOR TERMS OF ONE YEAR EACH;
(2) TWO SHALL SERVE FOR TERMS OF TWO YEARS EACH;
(3) TWO SHALL SERVE FOR TERMS OF THREE YEARS EACH, THEREAFTER THE
SUCCESSORS OF ALL SUCH DIRECTORS SHALL SERVE FOR TERMS OF THREE YEARS
EACH. THE MAYOR SHALL FILL ANY VACANCY WHICH MAY OCCUR BY REASON OF
DEATH, RESIGNATION, OR OTHERWISE IN A MANNER CONSISTENT WITH THE
ORIGINAL APPOINTMENT. MEMBERS MAY BE REMOVED BY THE MAYOR FOR CAUSE
AFTER A HEARING UPON TEN DAYS' WRITTEN NOTICE. SUCH MEMBERS SHALL
RECEIVE NO COMPENSATION FOR THEIR SERVICES BUT SHALL BE ENTITLED TO THE
NECESSARY EXPENSES, INCLUDING TRAVELING EXPENSES, INCURRED IN THE
DISCHARGE OF THEIR DUTIES.
(G) THE CHIEF EXECUTIVE OFFICER OF THE AGENCY SHALL BE APPOINTED BY A
TWO-THIRDS VOTE OF THE BOARD OF DIRECTORS.
(H) THE AGENCY, ITS MEMBERS, OFFICERS, AND EMPLOYEES, SHALL BE
SUBJECT TO ARTICLE FOURTEEN OF THE CIVIL SERVICE LAW AND FOR ALL SUCH
PURPOSES THE AGENCY SHALL BE DEEMED THE "PUBLIC EMPLOYER" AND ITS
MEMBERS, OFFICERS AND EMPLOYEES SHALL BE DEEMED "PUBLIC EMPLOYEES".
(I) THE CITY SHALL HAVE THE POWER TO MAKE, OR CONTRACT TO MAKE GRANTS
OR LOANS INCLUDING, BUT NOT LIMITED TO GRANTS OR LOANS OF MONEY, TO THE
AGENCY IN SUCH AMOUNTS, UPON SUCH TERMS AND CONDITIONS AND FOR SUCH
PERIOD OR PERIODS OF TIME AS IN THE JUDGMENT OF THE CITY AND THE AGENCY
ARE NECESSARY OR APPROPRIATE FOR THE ACCOMPLISHMENT OF ANY OF THE
PURPOSES OF THE AGENCY.
(J) THE CITY SHALL HAVE THE POWER TO CONDEMN PROPERTY FOR TRANSFER TO
THE CITY OF STATEN ISLAND INDUSTRIAL DEVELOPMENT AGENCY UNDER TITLE ONE
OF THIS ARTICLE UPON THE REQUEST OF TWO-THIRDS OF THE MEMBERS OF THE
BOARD OF DIRECTORS OF THE CITY OF STATEN ISLAND INDUSTRIAL DEVELOPMENT
AGENCY. NO PROPERTY SHALL BE CONDEMNED ON BEHALF OF THE AGENCY WHICH IS
ZONED "RESIDENTIAL" AS DEFINED IN THE ZONING RESOLUTION OF THE CITY, IF
ANY, OR WHICH IS OCCUPIED IN WHOLE OR IN PART AS A DWELLING OR RESI-
DENCE.
(K) FOR THE PURPOSE OF THIS SECTION "GOVERNING BODY" AS USED IN TITLE
ONE OF THIS ARTICLE SHALL MEAN THE MAYOR OF THE CITY. EXCEPT AS OTHER-
WISE PROVIDED IN THIS SECTION, THE AGENCY, ITS MEMBERS, OFFICERS AND
EMPLOYEES, AND ITS OPERATIONS AND ACTIVITIES SHALL BE GOVERNED BY THE
PROVISIONS OF TITLE ONE OF THIS ARTICLE.
(L) THE CITY SHALL SAVE HARMLESS AND INDEMNIFY ANY PERSON WHO IS
SERVING OR HAS SERVED AS A DIRECTOR OR OFFICER OR AS EMPLOYEE OF THE
CITY OF STATEN ISLAND INDUSTRIAL DEVELOPMENT AGENCY AGAINST ANY FINAN-
CIAL LOSS ARISING OUT OF OR IN CONNECTION WITH ANY CLAIM, DEMAND, SUIT
OR JUDGMENT, BASED ON A CAUSE OF ACTION INVOLVING ALLEGATIONS THAT PECU-
NIARY HARM WAS SUSTAINED BY ANY PERSON AS A RESULT OF ANY TRANSACTION,
ACT OR OMISSION TO ACT OF THE CITY OF STATEN ISLAND INDUSTRIAL DEVELOP-
MENT AGENCY OR OF ANY ACTION OR INACTION OR VOTE OF ANY DIRECTOR, OFFI-
CER OR EMPLOYEE OF SUCH AGENCY UNLESS SUCH INDIVIDUAL IS FOUND BY A
FINAL JUDICIAL DETERMINATION NOT TO HAVE ACTED IN GOOD FAITH FOR A
PURPOSE SUCH INDIVIDUAL REASONABLY BELIEVED TO BE IN THE BEST INTERESTS
OF THE AGENCY OR NOT TO HAVE HAD REASONABLE CAUSE TO BELIEVE THAT SUCH
A. 10030 117
CONDUCT WAS LAWFUL. PROVIDED, HOWEVER, THAT SUCH INDIVIDUAL MUST TRANS-
MIT TO THE CORPORATION COUNSEL OF THE CITY OF STATEN ISLAND ANY NOTICE
OF CLAIM, SUMMONS OR COMPLAINT OR OTHER ANALOGOUS PAPER SERVED ON SUCH
INDIVIDUAL WITHIN TEN DAYS OF ITS RECEIPT UNLESS PREVENTED FROM DOING SO
BY COMPELLING CIRCUMSTANCES. THE CORPORATION COUNSEL SHALL, WITHOUT
CHARGE, REPRESENT ANY SUCH INDIVIDUAL UNLESS UNABLE TO DO SO BY REASON
OF CONFLICT OF INTEREST. IN THE EVENT THAT THE CORPORATION COUNSEL IS
UNABLE TO GIVE SUCH REPRESENTATION, THE CITY OF STATEN ISLAND SHALL
INDEMNIFY THE INDIVIDUAL FOR ANY REASONABLE LITIGATION EXPENSE INCURRED
BY SUCH INDIVIDUAL.
§ 10-001. Legislative findings. It is the intention of the legisla-
ture that the incorporation of the city of Staten Island shall not alter
the existing landlord-tenant relationships within such city and that the
state and local laws regulating landlord-tenant relationships such as
legal regulated rents, maximum rents and tenancy issues shall continue
to provide such regulation until superseded by state law or local law of
the city of Staten Island and in accordance with such intent, such laws
and regulations are hereby continued. It is further provided that all
real property tax exemptions provided under article 4 of the real prop-
erty tax law shall be continued as shall all rent regulations and other
regulations and duties imposed on the owners of property receiving
exemptions pursuant to such article until superseded by state law or
local law of the city of Staten Island.
§ 10-002. Section 1 of chapter 21 of the laws of 1962, constituting
the local emergency housing rent control act, is amended by adding a new
subdivision 2-a to read as follows:
2-A. APPLICABILITY. FOR THE PURPOSES OF THIS ACT, A CITY WHICH IS
INCORPORATED ON OR AFTER THE FIRST OF JANUARY NEXT SUCCEEDING THE DATE
ON WHICH THIS SUBDIVISION SHALL HAVE BECOME A LAW AND WHICH IS COMPRISED
OF A GEOGRAPHICAL AREA WITH RESPECT TO WHICH PROVISIONS OF THIS ACT WERE
IN EFFECT ON THE DATE IMMEDIATELY PRIOR TO SUCH INCORPORATION AND WHICH
CITY HAD BEEN WHOLLY CONTAINED WITHIN A CITY WITH A POPULATION OF ONE
MILLION OR MORE SHALL CONTINUE TO BE TREATED AS A CITY WITH A POPULATION
OF ONE MILLION OR MORE.
§ 10-003. Section 4 of section 4 of chapter 576 of the laws of 1974,
constituting the emergency tenant protection act of nineteen seventy-
four, is amended by adding a new subdivision f to read as follows:
F. IN THE CITY OF STATEN ISLAND, THE RENT GUIDELINES BOARD SHALL BE
THE RENT GUIDELINES BOARD ESTABLISHED PURSUANT TO THE LOCAL LAW ENACTED
AS A SUCCESSOR TO THE NEW YORK CITY RENT STABILIZATION LAW OF NINETEEN
HUNDRED SIXTY-NINE AND PROVIDED WITH SUCH POWERS UNDER SUCH LOCAL LAW.
§ 10-004. Subdivision b of section 14 of section 4 of chapter 576 of
the laws of 1974, constituting the emergency tenant protection act of
nineteen seventy-four, is relettered subdivision c and a new subdivision
b is added to read as follows:
B. IN THE CITY OF STATEN ISLAND; PROVIDED THAT FOR THE PURPOSES OF
THIS ACT, THE CITY OF STATEN ISLAND SHALL CONTINUE TO BE TREATED AS A
CITY WITH A POPULATION OF ONE MILLION OR MORE AND THE REFERENCE TO ANY
LOCAL LAW APPLICABLE TO THE GEOGRAPHICAL AREA OF SUCH CITY PRIOR TO ITS
INCORPORATION SHALL REFER TO THE APPROPRIATE SUCCESSOR LEGISLATION
ENACTED BY THE CITY OF STATEN ISLAND; AND
§ 10-005. The section heading and subdivision 8 of section 352-eeee of
the general business law, as amended by section 1 of part N of chapter
36 of the laws of 2019, are amended to read as follows:
Conversions to cooperative or condominium ownership in the city of New
York OR IN THE CITY OF STATEN ISLAND.
A. 10030 118
8. The provisions of this section shall only be applicable in the city
of New York AND THE CITY OF STATEN ISLAND.
§ 10-006. Section 467-b of the real property tax law is amended by
adding a new subdivision 14 to read as follows:
14. FOR THE PURPOSES OF THIS SECTION, THE CITY OF STATEN ISLAND SHALL
CONTINUE TO BE TREATED AS A CITY WITH A POPULATION OF ONE MILLION OR
MORE AND ANY REFERENCE TO A LOCAL LAW ENACTED PURSUANT TO THE LOCAL
EMERGENCY HOUSING RENT CONTROL ACT SHALL ALSO REFER TO THE SUCCESSOR
LOCAL LAW ENACTED BY THE CITY OF STATEN ISLAND.
§ 10-007. The real property tax law is amended by adding a new section
498 to read as follows:
§ 498. CITY OF STATEN ISLAND. FOR THE PURPOSES OF THIS ARTICLE, THE
CITY OF STATEN ISLAND SHALL CONTINUE TO BE TREATED AS A CITY WITH A
POPULATION OF ONE MILLION OR MORE AND THE REFERENCE TO ANY LOCAL LAW
APPLICABLE TO THE GEOGRAPHICAL AREA OF SUCH CITY PRIOR TO ITS INCORPO-
RATION SHALL BE DEEMED TO REFER TO THE APPROPRIATE SUCCESSOR LEGISLATION
ENACTED BY THE CITY OF STATEN ISLAND.
§ 10-008. Applicability. It is the intention of the legislature that
the state and local laws regulating landlord-tenant relationships such
as legal regulated rents, maximum rents and tenancy issues shall contin-
ue to provide such regulation; provided, however, that within one
hundred twenty days after the date of establishment of the city of
Staten Island, the common council of such city must make a determination
of whether or not a public emergency exists requiring the continuation
of such regulations.
§ 11-001. Legislative findings. The legislature recognizes that the
formation of the city of Staten Island was not contemplated in the
establishment of the constitutional real property tax limitations. To
the greatest extent practicable, the establishment of the city of Staten
Island is formulated to preserve existing local laws, regulations and
instrumentalities of government to preserve the status quo and prevent a
disruption of government injurious to the public good.
The unique factor which determined the establishment of the constitu-
tional real property tax limits for the city of New York was the inclu-
sion of counties wholly within the city with the city assuming the
responsibilities and expenditures for functions normally exercised by
the counties in areas outside the city of New York. Staten Island will
now share this unique factor with New York city, as the county of Rich-
mond is wholly contained within the city of Staten Island.
Real property located in cities outside the city of New York is
subject to a real property tax limit of four percent, of which two
percent is city tax and two percent is county tax. Real property located
within New York city is subject to a more restrictive real property tax
limit of two and one-half percent, all of which is city tax. County real
property tax is not permitted within the city of New York.
The people of the city of Staten Island and county of Richmond and the
New York state legislature have adopted a charter for the city of Staten
Island which continues the New York city form of government placing
governmental responsibility on the city rather than the county. The
county of Richmond has not assumed new responsibilities justifying an
interpretation of the constitutional real property tax limits which
would permit the county of Richmond to impose a real property tax. Like-
wise the maintenance of the New York city form of government with the
usual county responsibilities being a function of city government when
combined with the prohibition of a county real property tax, requires an
A. 10030 119
interpretation providing a city real property tax limit of two and one-
half percent for the city of Staten Island.
Therefore the legislature finds and declares that the existing more
restrictive real property tax limits for real property located within
the county of Richmond remain in effect, providing a city real property
tax limit of two and one-half percent for the city of Staten Island and
prohibiting the imposition of a real property tax by the county of Rich-
mond.
§ 12-001. Subdivision (a) of section 1107 of the tax law, as amended
by section 1 of part C of chapter 407 of the laws of 1999, is amended to
read as follows:
(a) General. On the first day of the first month following the month
in which a municipal assistance corporation is created under article ten
of the public authorities law for a city of one million or more, in
addition to the taxes imposed by sections eleven hundred five and eleven
hundred ten, there is hereby imposed on such date, within the territo-
rial limits of such city (INCLUDING, IN THE CASE OF THE MUNICIPAL
ASSISTANCE CORPORATION FOR THE CITY OF NEW YORK, THE CITY OF STATEN
ISLAND), and there shall be paid, additional taxes, at the rate of four
percent, which except as provided in subdivision (b) of this section,
shall be identical to the taxes imposed by sections eleven hundred five
and eleven hundred ten. Such sections and the other sections of this
article, including the definition and exemption provisions, shall apply
for purposes of the taxes imposed by this section in the same manner and
with the same force and effect as if the language of those sections had
been incorporated in full into this section and had expressly referred
to the taxes imposed by this section.
§ 12-002. Subdivision (c) of section 1107 of the tax law, as amended
by chapter 588 of the laws of 2000, is amended to read as follows:
(c) Tax on sale of service of parking, garaging or storing of motor
vehicles. On the first day of the first month following the month in
which a municipal assistance corporation is created under article ten of
the public authorities law for a city of one million or more, in addi-
tion to the taxes imposed by sections eleven hundred five, eleven
hundred ten and subdivision (a) of this section, there is hereby imposed
on such date, within the territorial limits of such city (INCLUDING, IN
THE CASE OF THE MUNICIPAL ASSISTANCE CORPORATION FOR THE CITY OF NEW
YORK, THE CITY OF STATEN ISLAND), and there shall be paid, additional
taxes at the rate of six percent on receipts from every sale of the
service of providing parking, garaging or storing for motor vehicles by
persons operating a garage (other than a garage which is part of prem-
ises occupied solely as a private one or two family dwelling), parking
lot or other place of business engaged in providing parking, garaging or
storing of motor vehicles provided, however, that this subdivision shall
not apply to such facilities owned and operated by such city or an agen-
cy or instrumentality of such city or a public corporation the majority
of whose members are appointed by the chief executive officer of such
city or the legislative body of such city or both of them; provided,
however, that receipts for such services paid to a homeowner's associ-
ation by its members or receipts paid by members of a homeowner's asso-
ciation to a person leasing the parking facility from the homeowner's
association shall not be subject to the tax imposed by this subdivision.
For purposes of this subdivision, a homeowner's association is an asso-
ciation (including a cooperative housing or apartment corporation) (i)
the membership of which is comprised exclusively of owners or residents
of residential dwelling units, including owners of units in a condomin-
A. 10030 120
ium, and including shareholders in a cooperative housing or apartment
corporation, where such units are located in a defined geographical area
such as a housing development or subdivision; and (ii) which owns or
operates a garage, parking lot or other place of business engaged in
providing parking, garaging or storing for motor vehicles located in
such area for use (whether or not exclusive) by such owners or resi-
dents. All provisions set forth in this article applicable to the taxes
imposed under section eleven hundred five, including the definition and
exemption provisions of this article, shall apply with respect to a tax
imposed under this subdivision, except as to rate and except as other-
wise provided herein. The transitional provisions contained in section
eleven hundred six shall not apply to the taxes imposed by this section.
§ 12-003. Intentionally omitted.
§ 12-004. Section 1210 of the tax law is amended by adding two new
subdivisions (k) and (l) to read as follows:
(K) IN THE CASE OF THE MUNICIPAL ASSISTANCE CORPORATION FOR THE CITY
OF NEW YORK THE POWER OF THE CITY OF STATEN ISLAND TO ADOPT AND AMEND
LOCAL LAWS, ORDINANCES OR RESOLUTIONS IMPOSING TAXES PURSUANT TO THE
AUTHORITY OF SUCH SECTION SHALL, NOTWITHSTANDING ANY PROVISIONS OF ARTI-
CLE TWENTY-NINE OF THIS CHAPTER TO THE CONTRARY, BE SUSPENDED UNTIL ALL
THE NOTES AND BONDS OF SUCH MUNICIPAL ASSISTANCE CORPORATION SHALL HAVE
BEEN FULLY PAID AND DISCHARGED TOGETHER WITH INTEREST ON UNPAID INSTALL-
MENTS OF INTEREST.
(L) NOTWITHSTANDING THE PROVISIONS OF SUBDIVISION (K) OF THIS SECTION,
THE CITY OF STATEN ISLAND IS HEREBY AUTHORIZED AND EMPOWERED TO ADOPT
AND AMEND LOCAL LAWS, IMPOSING TAXES, AT A RATE NOT TO EXCEED TWO
PERCENT ON THE RECEIPTS OF SALES FROM THE SERVICES OF LAUNDERING, DRY-
CLEANING, TAILORING, WEAVING, PRESSING, SHOE REPAIRING AND SHOE SHINING,
AND CHARGES TO A PATRON FOR ADMISSION TO, OR USE OF, FACILITIES FOR
SPORTING ACTIVITIES IN WHICH THE PATRON IS TO BE A PARTICIPANT SUCH AS
BOWLING ALLEYS AND SWIMMING POOLS. SUCH TAXES SHALL BE ADMINISTERED,
COLLECTED AND DISTRIBUTED BY THE STATE TAX COMMISSION AS PROVIDED IN
SUBPART B OF PART THREE AND IN PART FOUR OF THIS ARTICLE.
§ 12-005. Subdivisions 3 and 4 of section 92-d of the state finance
law, subdivision 3 as amended by section 4 of part A of chapter 88 of
the laws of 2000 and subdivision 4 as amended by section 11 of part SS1
of chapter 57 of the laws of 2008, are amended to read as follows:
3. The taxes, interest and penalties imposed, pursuant to sections
eleven hundred seven or eleven hundred eight (as the case may be) of the
tax law within the territorial limits of a city in aid of which a munic-
ipal assistance corporation has been created (INCLUDING, IN THE CASE OF
THE MUNICIPAL ASSISTANCE CORPORATION FOR THE CITY OF NEW YORK, THE CITY
OF STATEN ISLAND), and received by the commissioner of taxation and
finance, after deducting the amount which the commissioner of taxation
and finance shall determine to be necessary for reasonable costs of the
commissioner of taxation and finance in administering, collecting and
distributing such taxes, shall be appropriated (i) to the municipal
assistance corporation which has been created in aid of such city in
order to enable such corporation to fulfill the terms of any agreements
made with the holders of its notes and bonds and to carry out its corpo-
rate purposes, including the maintenance of the capital reserve fund,
and (ii) the balance, if any, to the city in aid of which such corpo-
ration has been created, or to a public benefit corporation to which the
tax may be otherwise payable pursuant to law, as hereinafter provided.
NOTWITHSTANDING THE PROVISIONS OF THIS SUBDIVISION, IN THE CASE OF THE
MUNICIPAL ASSISTANCE CORPORATION FOR THE CITY OF NEW YORK, SUCH BALANCE,
A. 10030 121
IF ANY, SHALL BE DIVIDED BETWEEN THE CITY OF NEW YORK AND THE CITY OF
STATEN ISLAND AND PAID, AS HEREINAFTER PROVIDED.
4. On or before the twelfth day of each month, the commissioner of
taxation and finance shall certify to the comptroller the amount of all
revenues so received during the prior month as a result of the taxes,
interest and penalties so imposed and in addition on or before the last
day of June the commissioner shall certify the amount of such revenues
received during and including the first twenty-five days of June. IN
THE CASE OF THE MUNICIPAL ASSISTANCE CORPORATION FOR THE CITY OF NEW
YORK, THE COMMISSIONER OF TAXATION AND FINANCE SHALL CERTIFY SEPARATELY
THE AMOUNTS OF SUCH REVENUES RECEIVED FROM WITHIN THE TERRITORIAL LIMITS
OF THE CITY OF NEW YORK AND THE TERRITORIAL LIMITS OF THE CITY OF STATEN
ISLAND. The amount of revenues so certified shall be deposited by the
comptroller in the municipal assistance tax fund and the amount attrib-
utable to the taxes, interest and penalties imposed within the territo-
rial limits of a city in aid of which a municipal assistance corporation
has been created INCLUDING, IN THE CASE OF THE MUNICIPAL ASSISTANCE
CORPORATION FOR THE CITY OF NEW YORK, THE CITY OF STATEN ISLAND shall be
credited to a special account established in such fund for such corpo-
ration. Notwithstanding the foregoing provisions, the commissioner of
taxation and finance may prorate revenue attributable to the first or
last quarterly return period during which the taxes imposed by section
eleven hundred seven or eleven hundred eight (as the case may be) of the
tax law apply so as to separate from the revenue collected for that
quarter pursuant to such taxes the revenue collected pursuant to local
legislation adopted by a city pursuant to section twelve hundred ten or
twelve hundred twelve-A of the tax law. Such a proration by the commis-
sioner of taxation and finance shall be made on the basis of the ratio
of the number of months during which such taxes were imposed during such
quarterly return period to the total number of months in such quarterly
return period when such proration is reasonably necessary to ascertain
the amount of such money which must be deposited by the comptroller in
such special account and the amount of such money which must be deposit-
ed pursuant to section twelve hundred sixty-one of the tax law. The
commissioner of taxation and finance shall not be held liable for any
inaccuracy in any certification under this subdivision.
§ 12-006. Subdivision 6 of section 92-d of the state finance law, as
amended by section 4 of part A of chapter 88 of the laws of 2000, is
amended to read as follows:
6. Upon receipt by the comptroller of a certificate or certificates
from the [chairman] CHAIRPERSON of a municipal assistance corporation
that such corporation requires a payment or payments in order to comply
with any agreement with the holders of its notes and bonds and to carry
out its corporate purposes, including the maintenance of the capital
reserve fund, from the special account established for such corporation,
each of which certificates shall specify the required payment or
payments and the date when the payment or payments is required, the
comptroller shall pay from such special account on or before the speci-
fied date or within thirty days after such receipt, whichever is later,
to such corporation, as the [chairman] CHAIRPERSON thereof may direct in
any such certificate, the amount or amounts so certified. IN THE CASE
OF THE MUNICIPAL ASSISTANCE CORPORATION FOR THE CITY OF NEW YORK, EACH
AMOUNT SO PAID SHALL BE COMPRISED OF REVENUES ATTRIBUTABLE TO RECEIPTS
FROM BOTH THE CITY OF NEW YORK AND THE CITY OF STATEN ISLAND IN THE SAME
PROPORTION THAT SUCH REVENUES WERE RECEIVED DURING THE PERIOD COVERED BY
EACH SUCH CERTIFICATION. The [chairman] CHAIRPERSON of such corporation
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shall furnish the commissioner of taxation and finance with copies of
such certificates. The comptroller shall from time to time, but in no
event later than the fifteenth day of October, January and April and the
last day of June of each fiscal year, pay over and distribute to the
chief fiscal officer of the city in aid of which such municipal assist-
ance corporation has been created to be paid into the treasury of such
city to the credit of the general fund, or pay over and distribute to a
public benefit corporation to which the tax may otherwise be payable
pursuant to law, all revenues in the special account established for
such corporation in the municipal assistance tax fund, if any, in excess
of the aggregate amount which the [chairman] CHAIRPERSON of such corpo-
ration has certified to the comptroller and which has been previously
appropriated and paid to such corporation as hereinabove authorized.
NOTWITHSTANDING THE PROVISIONS OF THIS SUBDIVISION, IN THE CASE OF THE
MUNICIPAL ASSISTANCE CORPORATION FOR THE CITY OF NEW YORK, THE COMP-
TROLLER SHALL FROM TIME TO TIME, BUT IN NO EVENT LATER THAN THE
FIFTEENTH OF OCTOBER, JANUARY, AND APRIL AND THE LAST DAY OF JUNE OF
EACH FISCAL YEAR, (A) APPORTION BETWEEN THE CITY OF NEW YORK AND THE
CITY OF STATEN ISLAND THE REVENUES, IF ANY, IN THE SPECIAL ACCOUNT
ESTABLISHED FOR SUCH CORPORATION IN THE MUNICIPAL ASSISTANCE TAX FUND ON
THE BASIS OF THE LOCUS OF THEIR RECEIPT AND (B) PAY OVER AND DISTRIBUTE
TO THE CHIEF FISCAL OFFICERS OF SUCH CITIES TO PAY INTO THEIR RESPECTIVE
TREASURIES TO THE CREDIT OF THE GENERAL FUND ALL SUCH RESPECTIVE REVEN-
UES IN EXCESS OF THE AGGREGATE AMOUNT WHICH THE CHAIRPERSON OF SUCH
CORPORATION HAS CERTIFIED TO THE COMPTROLLER AND WHICH HAS BEEN PREVI-
OUSLY APPROPRIATED AND PAID TO SUCH CORPORATION AS HEREINABOVE AUTHOR-
IZED. In no event shall the comptroller pay over and distribute any
revenues (other than the amount to be deducted for administering,
collecting and distributing such sales and compensating use taxes) to
any person other than the municipal assistance corporation unless and
until the aggregate of all payments certified to the comptroller as
required by such corporation as of such date in order to comply with its
agreements with the holders of its notes and bonds and to carry out its
corporate purposes, including the maintenance of the capital reserve
fund, which remain unappropriated or unpaid to such corporation shall
have been appropriated to such corporation and shall have been paid in
full; provided, however, that no person, including such corporation or
the holders of its notes or bonds shall have any lien on such revenues
and such agreement shall be executory only to the extent of such reven-
ues available to the state in such special account. On the day on which
the comptroller pays over and distributes to the chief fiscal officer of
such city OR CITIES any revenues from such special account the commis-
sioner of taxation and finance shall certify to the comptroller the
amount to be deducted for administering, collecting and distributing the
tax imposed pursuant to section eleven hundred seven or eleven hundred
eight (as the case may be) of the tax law within the territorial limits
of such city OR CITIES since he OR SHE last certified such amount and
the comptroller shall pay such amount into the general fund of the state
treasury to the credit of the state purposes fund therein.
§ 12-007. Subdivision 3 of section 92-e of the state finance law, as
amended by chapter 187 of the laws of 1995, is amended to read as
follows:
3. Such amounts, including per capita aid apportioned to a city in aid
of which a municipal assistance corporation has been created (INCLUDING,
IN THE CASE OF THE MUNICIPAL ASSISTANCE CORPORATION FOR THE CITY OF NEW
YORK, THE CITY OF STATEN ISLAND), shall be deposited by the comptroller
A. 10030 123
to the credit of the special account established for the municipal
assistance corporation which has been created in aid of such city in
order to enable such corporation to fulfill the terms of any agreements
made with the holders of its notes and bonds and to carry out its corpo-
rate purposes, including the maintenance of the capital reserve fund
securing such bonds and notes, and, subject to the provisions of section
fifty-four of this chapter, and subdivisions five and five-a of this
section, the balance, if any, shall be paid to the chief fiscal officer
of the city in aid of which such corporation has been created as herein-
after provided. NOTWITHSTANDING THE PROVISIONS OF THIS SUBDIVISION, IN
THE CASE OF THE MUNICIPAL ASSISTANCE CORPORATION FOR THE CITY OF NEW
YORK, SUCH BALANCE, IF ANY, SHALL BE DIVIDED BETWEEN THE CITY OF NEW
YORK AND THE CITY OF STATEN ISLAND AND PAID, AS HEREINAFTER PROVIDED.
§ 12-008. Subdivision 5 of section 92-e of the state finance law, as
amended by chapter 55 of the laws of 1992, is amended to read as
follows:
5. Upon receipt by the comptroller of a certificate or certificates
from the [chairman] CHAIRPERSON of a municipal assistance corporation
that such corporation requires a payment or payments in order to comply
with any agreement with the holders of its notes and bonds and to carry
out its corporate purposes, including the maintenance of the capital
reserve fund securing such bonds, from the appropriate special account
established for such corporation, each of which certificates shall spec-
ify the required payment or payments and the date when the payment or
payments is required, the comptroller shall pay from such special
account on or before the specified date or within thirty days after
receipt of such certificate or certificates, whichever is later, to such
corporation, as the [chairman] CHAIRPERSON thereof may direct in any
such certificate, the amount or amounts so certified. IN THE CASE OF
THE MUNICIPAL ASSISTANCE CORPORATION FOR THE CITY OF NEW YORK, EACH
AMOUNT SO PAID SHALL BE COMPRISED OF PER CAPITA AID APPORTIONED TO THE
CITY OF NEW YORK AND THE CITY OF STATEN ISLAND IN THE SAME PROPORTION
THAT SUCH AMOUNTS WERE SO APPORTIONED DURING THE PERIOD COVERED BY EACH
SUCH CERTIFICATION. The comptroller shall from time to time, but in no
event later than the fifteenth day of October, January and April and the
last day of June of each fiscal year, pay over and distribute to the
chief fiscal officer of the city in aid of which such municipal assist-
ance corporation has been created to be paid into the treasury of such
city to the credit of the general fund all revenues in the special
account established for such corporation in the municipal assistance
state aid fund, if any, in excess of (i) the aggregate amount which the
[chairman] CHAIRPERSON of such corporation has certified to the comp-
troller and which has been previously paid to such corporation as herein
above authorized, and (ii) amounts to be refunded to the general fund of
the state of New York pursuant to subdivision five-a of this section.
NOTWITHSTANDING THE PROVISIONS OF THIS SUBDIVISION, IN THE CASE OF THE
MUNICIPAL ASSISTANCE CORPORATION FOR THE CITY OF NEW YORK, THE COMP-
TROLLER SHALL FROM TIME TO TIME, BUT IN NO EVENT LATER THAN THE
FIFTEENTH OF OCTOBER, JANUARY AND APRIL AND THE LAST DAY OF JUNE OF EACH
FISCAL YEAR, (A) APPORTION BETWEEN THE CITY OF NEW YORK AND THE CITY OF
STATEN ISLAND THE REVENUES, IF ANY, IN THE SPECIAL ACCOUNT ESTABLISHED
FOR SUCH CORPORATION IN THE MUNICIPAL ASSISTANCE STATE AID FUND ON THE
BASIS OF THE AMOUNTS APPORTIONED TO EACH SUCH CITY PURSUANT TO SECTION
FIFTY-FOUR OF THIS CHAPTER AND (B) PAY OVER AND DISTRIBUTE TO THE CHIEF
FISCAL OFFICERS OF SUCH CITIES TO BE PAID INTO THEIR RESPECTIVE TREAS-
URIES TO THE CREDIT OF THE GENERAL FUND ALL SUCH RESPECTIVE REVENUES IN
A. 10030 124
EXCESS OF THE AGGREGATE AMOUNT WHICH THE CHAIRPERSON OF SUCH CORPORATION
HAS CERTIFIED TO THE COMPTROLLER AND WHICH HAS BEEN PREVIOUSLY PAID TO
SUCH CORPORATION AS HEREINABOVE AUTHORIZED. In no event shall the comp-
troller pay over and distribute any revenues to any person other than
the municipal assistance corporation unless and until the aggregate of
all payments certified to the comptroller as required by such corpo-
ration as of such date in order to comply with its agreements with the
holders of its notes and bonds and to carry out its corporate purposes,
including the maintenance of the capital reserve fund securing such
bonds, which remain unpaid to such corporation shall have been paid in
full to such corporation; provided, however, that no person, including
such corporation or the holders of its notes or bonds shall have any
lien on such revenues and such agreement shall be executory only to the
extent of such revenues available to the state in such special account.
§ 12-009. Paragraph c of subdivision 6 of section 54 of the state
finance law, as added by chapter 430 of the laws of 1997, is amended to
read as follows:
c. Upon such certification of the amounts payable to counties, cities,
villages and towns for town-wide and town outside village purposes, such
per capita aid shall be apportioned and paid to the chief fiscal officer
of each such locality pursuant to this section on audit and warrant of
the state comptroller out of moneys appropriated by the legislature for
such purpose to the credit of the local assistance account in the gener-
al fund of the state treasury; provided however that upon such certif-
ication of amounts payable to the city of New York OR, THE CITY OF
STATEN ISLAND, IF APPLICABLE, such per capita aid shall be apportioned
and paid as follows: (i) any amounts required to be paid to the city
university construction fund pursuant to the city university
construction fund act, (ii) any amounts required to be paid to the New
York city housing development corporation pursuant to the New York city
housing development corporation act, (iii) any amounts required to be
paid by the city to the New York city transit authority pursuant to the
provisions of chapter seven of the laws of nineteen hundred seventy-two,
(iv) any amounts required to be paid by the city to the state to repay
an advance made in nineteen hundred seventy-four to subsidize the fare
of the New York city transit authority, (v) five hundred thousand
dollars to the chief fiscal officer of the city of New York for payment
to the trustees of the police pension fund of such city pursuant to the
provisions of paragraph e of this subdivision, (vi) eighty million
dollars to the special account for the municipal assistance corporation
for the city of New York in the municipal assistance tax fund created
pursuant to section ninety-two-d of this chapter to the extent that such
amount has been included by the municipal assistance corporation for the
city of New York in any computation for the issuance of bonds on a pari-
ty with outstanding bonds pursuant to a contract with the holders of
such bonds prior to the issuance of any other bonds secured by payments
from the municipal assistance state aid fund created pursuant to section
ninety-two-e of this chapter, (vii) the balance to the special account
for the municipal assistance corporation for the city of New York in the
municipal assistance state aid fund created pursuant to section ninety-
two-e of this chapter, and (viii) any amounts to be refunded to the
general fund of the state of New York pursuant to the annual appropri-
ation enacted for the municipal assistance state aid fund. Notwithstand-
ing any existing law, no payments of per capita aid payable to the city
of New York shall be paid to the state of New York municipal bond bank
agency, the New York state sports authority or the transit construction
A. 10030 125
fund so long as amounts of such aid are required to be paid into the
municipal assistance state aid fund, and thereafter, after payment of
the amounts described in subparagraphs (i) through (viii) of this para-
graph the balance shall be paid (A) to the state in repayment of the
appropriation of two hundred fifty million dollars made to the city
pursuant to chapter two hundred fifty-seven of the laws of nineteen
hundred seventy-five providing emergency financial assistance to the
city of New York at the extraordinary session held in such year, as
amended, (B) to the state of New York municipal bond bank agency to the
extent provided by section twenty-four hundred thirty-six of the public
authorities law, (C) to the New York state sports authority to the
extent provided by section twenty-four hundred sixty-three of the public
authorities law, (D) to the transit construction fund to the extent
provided by section twelve hundred twenty-five-i of the public authori-
ties law, and thereafter (E) to the city OF NEW YORK.
§ 12-010. Subparagraphs 1 and 2 of paragraph d of subdivision 6 of
section 54 of the state finance law, as added by chapter 430 of the laws
of 1997, are amended to read as follows:
(1) to the city of New York AND THE CITY OF STATEN ISLAND, on the
twenty-fifth days of April, June, October and February;
(2) to every county, city, village or town, other than the city of
New York AND THE CITY OF STATEN ISLAND, whose fiscal year commences on
the first day of June or July, on the twenty-fifth days of April, May,
September and December;
§ 12-011. Subdivisions 1 and 2 of section 3034 of the public authori-
ties law, as added by chapter 169 of the laws of 1975, are amended to
read as follows:
1. The corporation shall be administered by a board of directors,
consisting of nine directors, none of whom shall be officers or employ-
ees of the federal government or of the state or political subdivisions
thereof. All of the directors shall be appointed by the governor with
the advice and consent of the senate, provided that four of such direc-
tors shall be appointed upon written recommendation of the mayor. Of
the directors initially appointed upon the written recommendation of the
mayor, one shall serve for a term ending December thirty-first, nineteen
hundred seventy-six; one shall serve for a term ending December thirty-
first, nineteen hundred seventy-seven; one shall serve for a term ending
December thirty-first, nineteen hundred seventy-eight; and one shall
serve for a term ending December thirty-first, nineteen hundred seven-
ty-nine. THE PROVISIONS OF THIS SUBDIVISION NOTWITHSTANDING, OF THE
DIRECTORS APPOINTED UPON THE RECOMMENDATION OF THE MAYOR, THE DIRECTOR
WHOSE TERM EXPIRES ON THE DECEMBER THIRTY-FIRST NEXT PRECEDING THE
ESTABLISHMENT OF A CITY OF STATEN ISLAND, AND ANY SUCCESSOR THERETO,
SHALL BE APPOINTED ONLY UPON THE WRITTEN RECOMMENDATION OF THE MAYOR OF
THE CITY OF STATEN ISLAND. Of the remaining directors initially
appointed by the governor, one shall serve for a term ending December
thirty-first, nineteen hundred seventy-six; one shall serve for a term
ending December thirty-first, nineteen hundred seventy-seven; one shall
serve for a term ending December thirty-first, nineteen hundred seven-
ty-eight; and two shall serve for a term ending December thirty-first,
nineteen hundred seventy-nine. Each director shall hold office until
his OR HER successor has been appointed and qualified. Thereafter each
director appointed by the governor shall serve a term of four years,
except that any director appointed to fill a vacancy shall serve only
until the expiration of his predecessor's term.
A. 10030 126
2. The speaker and the minority leader of the assembly, the president
pro-tem and the minority leader of the senate, the city board of esti-
mate acting by majority vote, [and] the [vice-chairman] VICE-CHAIRPERSON
of the city council, THE COMPTROLLER OF THE CITY OF STATEN ISLAND AND
THE COMMON COUNCIL OF THE CITY OF STATEN ISLAND shall each be entitled
to appoint a representative to the board of directors. Each such
representative shall be entitled to receive notice of and to attend all
meetings of the board of directors but shall not be entitled to vote.
No representative shall be an employee or officer of the federal, state
or city governments. Each representative shall serve at the pleasure of
the appointing official or body, shall be eligible for reappointment,
and shall hold office until his OR HER successor has been appointed.
§ 12-012. Subdivision 1 of section 3036 of the public authorities law,
as amended by chapter 201 of the laws of 1978, is amended to read as
follows:
1. Not less than one hundred twenty days before the beginning of each
fiscal year of the corporation (but not later than July 1, 1975 for the
fiscal year ending June 30, 1976), the [chairman] CHAIRPERSON of the
board of directors of the corporation shall certify to the state comp-
troller and to the mayor a schedule setting forth the cash requirements
of the corporation for such fiscal year and the time or times when such
cash is required. The total amount so certified by such [chairman]
CHAIRPERSON for such fiscal year shall be equal to: (i) the amounts
which are required to be deposited in the capital reserve fund author-
ized to be created and established pursuant to subdivision three of this
section during such fiscal year in order to maintain such capital
reserve fund of the corporation at the level required in accordance with
subdivision five of this section; (ii) the amounts required to be depos-
ited in the debt service fund of the corporation to pay all interest and
all payments of principal and redemption premium, if any, on notes and
bonds secured by such debt service fund maturing or otherwise coming due
during such fiscal year; and (iii) the amounts required to be deposited
in the operating fund of the corporation, as determined by the corpo-
ration, to meet the operating requirements and other expenses of the
corporation during such fiscal year. If any increase shall occur in the
cash requirements specified above, or if payments are required at a time
or times earlier than previously certified or if the city shall for any
reason fail to make timely payment of the principal and accrued interest
due on any obligation issued by the city to the corporation and maturing
within the same fiscal year, such [chairman] CHAIRPERSON shall certify a
revised schedule of cash requirements for such fiscal year to the state
comptroller and to the mayor. The schedule accompanying each certif-
ication (or revision thereof) shall provide for such payment dates as
the corporation deems appropriate to assure that sufficient funds will
be available from the sources identified below to enable it to meet its
current obligations as they come due. Upon receipt of such certif-
ication, or any revision thereof, the state comptroller shall pay such
amount to the corporation for deposit in the appropriate funds, in
accordance with such certification from the special account established
for the corporation in the municipal assistance tax fund, in accordance
with subdivision one of section ninety-two-d of the state finance law,
including any amount transferred to the municipal assistance tax fund
from the stock transfer tax fund pursuant to subdivision four of section
[92-b] NINETY-TWO-B of the state finance law. Any such payment shall
be made within thirty days of receipt of the certification or at the
time specified in the certification, whichever is later; provided that
A. 10030 127
any such amounts shall have been first appropriated by the state for
such purpose or shall have been otherwise made available. Any amount so
paid to the corporation shall be deducted from the amount otherwise
payable to the city OR THE CITY OF STATEN ISLAND, AS THE CASE MAY BE,
from the municipal assistance tax fund established by section ninety-
two-d of the state finance law and shall not obligate the state to make,
nor entitle the city OR THE CITY OF STATEN ISLAND, AS THE CASE MAY BE,
to receive, any additional payments.
§ 12-013. Subdivision 1 of section 3036-a of the public authorities
law, as amended by chapter 55 of the laws of 1992, is amended to read as
follows:
1. In addition to the total amount certified by such [chairman] CHAIR-
PERSON for such fiscal year, all as referred to in subdivision one of
section three thousand thirty-six, the [chairman] CHAIRPERSON shall at
the same time certify to the state comptroller and to the mayor a sched-
ule setting forth additional cash requirements of the corporation which
shall be equal to: (i) the amounts which are required to be deposited in
the capital reserve fund authorized to be created and established pursu-
ant to subdivision two of this section (in this section called the capi-
tal reserve fund) during such fiscal year in order to maintain the capi-
tal reserve fund at the level required in accordance with subdivision
four of this section; (ii) the amounts required to be deposited in the
bond service fund of the corporation to pay all interest and all
payments of principal and redemption premium, if any, on notes and bonds
payable from the sources hereinafter identified in this section and
maturing or otherwise coming due during such fiscal year; and (iii) the
amounts required to be deposited in the operating fund of the corpo-
ration heretofore established, as determined by the corporation, to meet
the operating requirements and other expenses of the corporation during
such fiscal year. If any increase shall occur in such additional cash
requirements specified above, or if payments are required at a time or
times earlier than previously certified or if the city shall for any
reason fail to make timely payment of the principal and accrued interest
due on any obligation issued by the city to the corporation and maturing
within the same fiscal year, such [chairman] CHAIRPERSON shall certify a
revised schedule of such additional cash requirements for such fiscal
year to the state comptroller and to the mayor. The schedule accompany-
ing each certification (or revision thereof) shall provide for such
payment dates as the corporation deems appropriate to assure that suffi-
cient funds will be available from the sources identified below to
enable it to meet its current obligations under this section as they
come due. Upon receipt of such certification, or any revision thereof,
the state comptroller shall pay such amount to the corporation for
deposit in the appropriate funds referred to in this section, in accord-
ance with such certification from the special account established for
the corporation in the municipal assistance state aid fund in accord-
ance with subdivision one of section ninety-two-e of the state finance
law and, subject to agreements with outstanding bond and note holders of
the corporation, from the special account established for the corpo-
ration in the municipal assistance tax fund, in accordance with subdivi-
sion one of section ninety-two-d of the state finance law, including any
amount transferred to the municipal assistance tax fund from the stock
transfer tax fund pursuant to subdivision four of section ninety-two-b
of the state finance law. Any such payment shall be made within thirty
days of receipt of the certification or at the time specified in the
certification, whichever is later; provided that any such amounts shall
A. 10030 128
have been first appropriated by the state for such purpose or shall have
been otherwise made available. Any amount paid to the corporation from
such municipal assistance state aid fund shall be deducted from the
amount otherwise payable to the city OR THE CITY OF STATEN ISLAND, AS
THE CASE MAY BE, as per capita aid pursuant to sections fifty-four and
ninety-two-e of the state finance law and shall not obligate the state
to make, nor entitle the city OR THE CITY OF STATEN ISLAND, to receive,
any additional payments of per capita aid. Any amount so paid to the
corporation from the municipal assistance tax fund shall, in addition to
the amount deducted pursuant to subdivision one of section three thou-
sand thirty-six, be deducted from the amount otherwise payable to the
city OR THE CITY OF STATEN ISLAND, AS THE CASE MAY BE, from the munici-
pal assistance tax fund and shall not obligate the state to make, nor
entitle the city OR THE CITY OF STATEN ISLAND to receive, any additional
payments from such municipal assistance tax fund.
§ 12-014. Subdivision 1 of section 3036-b of the public authorities
law, as amended by chapter 55 of the laws of 1992, is amended to read as
follows:
1. In addition to the total amount certified by such [chairman] CHAIR-
PERSON for such fiscal year, all as referred to in subdivision one of
each of sections three thousand thirty-six and three thousand thirty-
six-a of this title, the [chairman] CHAIRPERSON shall at the same time
certify to the state comptroller and to the mayor a schedule setting
forth additional cash requirements of the corporation which shall be
equal to: (i) the amounts required to be deposited in the bond payment
fund of the corporation to pay all interest and all payments of princi-
pal and redemption premium, if any, on bonds and notes payable from the
sources hereinafter identified in this section and maturing or otherwise
coming due during such fiscal year; (ii) the amounts required to be
deposited in the operating fund of the corporation heretofore estab-
lished, as determined by the corporation, to meet the operating require-
ments and other expenses of the corporation during such fiscal year to
the extent not otherwise provided for; and (iii) the amounts required to
be deposited in the bond reserve fund created and established pursuant
to the agreements of the corporation made with the holders of its bonds
or notes issued pursuant to subdivision two-b of section three thousand
thirty-three of this title during such fiscal year in order to maintain
the bond reserve fund at the level required in accordance with the
agreements of the corporation made with the holders of its bonds or
notes issued pursuant to subdivision two-b of section three thousand
thirty-three of this title. If any increase shall occur in such addi-
tional cash requirements specified above, or if payments are required at
a time or times earlier than previously certified or if the city shall,
for any reason, fail to make timely payment of the principal and accrued
interest due on any obligation issued by the city to the corporation and
maturing within the same fiscal year, such [chairman] CHAIRPERSON shall
certify a revised schedule of such additional cash requirements for such
fiscal year to the state comptroller and to the mayor. The schedule
accompanying each certification, or revision thereof, shall provide for
such payment dates as the corporation deems appropriate to assure that
sufficient funds will be available from the sources identified below to
enable it to meet its current obligations under this section as they
come due. Upon receipt of such certification, or any revision thereof,
the state comptroller shall pay such amount to the corporation for
deposit in the appropriate funds referred to in this section, in accord-
ance with such certification and subject to agreements with holders of
A. 10030 129
outstanding bonds and notes of the corporation, from the special account
established for the corporation in the municipal assistance state aid
fund in accordance with subdivision one of section ninety-two-e of the
state finance law and from the special account established for the
corporation in the municipal assistance tax fund in accordance with
subdivision one of section ninety-two-d of the state finance law,
including any amount transferred to the municipal assistance tax fund
from the stock transfer tax fund pursuant to subdivision four of section
ninety-two-b of the state finance law. Any such payment shall be made
within thirty days of receipt of the certification or at the time speci-
fied in the certification, whichever is later; provided that any such
amounts shall have been first appropriated by the state for such purpose
or shall have been otherwise made available. Any amount paid to the
corporation from such municipal assistance state aid fund, in addition
to the amount deducted pursuant to subdivision one of section three
thousand thirty-six-a of this title, shall be deducted from the amount
otherwise payable to the city OR THE CITY OF STATEN ISLAND, AS THE CASE
MAY BE, as per capita aid pursuant to sections fifty-four and ninety-
two-e of the state finance law and shall not obligate the state to make,
nor entitle the city OR THE CITY OF STATEN ISLAND to receive, any addi-
tional payments of per capita aid. Any amount so paid to the corporation
from the municipal assistance tax fund, in addition to the amount
deducted pursuant to subdivision one of each of section three thousand
thirty-six or three thousand thirty-six-a of this title, shall be
deducted from the amount otherwise payable to the city OR THE CITY OF
STATEN ISLAND, AS THE CASE MAY BE, from the municipal assistance tax
fund and shall not obligate the state to make, nor entitle the city OR
THE CITY OF STATEN ISLAND to receive, any additional payments from such
municipal assistance tax fund.
§ 12-015. Section 6 of section 2 of chapter 868 of the laws of 1975,
constituting the New York state financial emergency act for the city of
New York, subdivision 1 as amended by chapter 777 of the laws of 1978,
subdivision 3 as amended by chapter 869 of the laws of 1975 and subdivi-
sion 4 as amended by chapter 201 of the laws of 1978, is amended to read
as follows:
§ 6. Administration of the board. 1. The membership of the board
shall be the governor, the state comptroller (pursuant to [his] SUCH
OFFICIAL'S authority to supervise the accounts of any political subdivi-
sion of the state), the mayor, the city comptroller, THE MAYOR OF THE
CITY OF STATEN ISLAND, THE COMPTROLLER OF THE CITY OF STATEN ISLAND, and
three members appointed by the governor with the advice and consent of
the senate. At least two of the appointed members shall be residents of
the city or have their principal place of business in the city. THE
MAYOR OF THE CITY OF STATEN ISLAND MAY RECOMMEND TO THE GOVERNOR THE
APPOINTMENT OF ONE SUCH APPOINTED MEMBER. Such appointed members shall
serve at the pleasure of the governor. The governor shall be the [chair-
man] CHAIRPERSON of the board and the governor or [his] THE GOVERNOR'S
representative shall preside over all meetings of the board. The board
shall act by majority vote of the entire board, PROVIDED, HOWEVER, ON
MATTERS AFFECTING ONLY THE CITY, AS DETERMINED BY THE GOVERNOR, THE
STATE COMPTROLLER AND THE APPOINTED MEMBERS, THE MAYOR OF THE CITY OF
STATEN ISLAND AND THE COMPTROLLER OF THE CITY OF STATEN ISLAND SHALL NOT
VOTE, AND ON MATTERS AFFECTING ONLY THE CITY OF STATEN ISLAND, AS DETER-
MINED BY THE GOVERNOR, THE STATE COMPTROLLER AND THE APPOINTED MEMBERS,
THE MAYOR AND THE CITY COMPTROLLER SHALL NOT VOTE. SUCH OFFICIALS NOT
VOTING SHALL NOT BE CONSIDERED MEMBERS OF THE BOARD FOR DETERMINING A
A. 10030 130
MAJORITY. The board shall maintain a record of its proceedings in such
form as it may determine, but such record shall indicate attendance and
all votes cast by each member. Every member of the board, who is other-
wise an elected official of the state or city, shall be entitled to
designate a representative to attend, in [his] SUCH OFFICIAL'S place,
meetings of the board and to vote or otherwise act in [his] SUCH OFFI-
CIAL'S behalf. Written notice of such designation shall be furnished to
the board by the designating member prior to any meeting attended by
[his] SUCH OFFICIAL'S representative. Any such representative shall
serve at the pleasure of the designating member. No such representative
shall be authorized to delegate any of [his] SUCH REPRESENTATIVE'S
duties or functions to any other person. The lieutenant governor,
temporary president of the senate, the minority leader of the senate,
speaker and minority leader of the assembly, the president of the coun-
cil of the city of New York, the city board of estimate acting by major-
ity vote, THE SPEAKER AND THE MINORITY LEADER OF THE COMMON COUNCIL OF
THE CITY OF STATEN ISLAND and the [vice-chairman] VICE-CHAIRPERSON and
the minority leader of the council of the city of New York, shall each
be entitled to appoint a representative to the board. Each such repre-
sentative shall be entitled to receive notice of and to attend all meet-
ings of the board but shall not be entitled to vote. No representative
shall be an employee or officer of the federal, state or city govern-
ments. Each representative shall serve at the pleasure of the appoint-
ing official or body, shall be eligible for reappointment, and shall
hold office until [his] SUCH REPRESENTATIVE'S successor has been
appointed.
2. Notwithstanding any inconsistent provisions of law, general,
special or local, no officer or employee of the state, or political
subdivision of the state, any governmental entity operating any public
school or college or other public agency or instrumentality or unit of
government which exercises governmental powers under the laws of the
state, shall forfeit [his] SUCH PERSON'S office or employment by reason
of [his] SUCH PERSON'S acceptance or appointment as a member, represen-
tative, officer, employee or agent of the board nor shall service as
such member, representative, officer, employee or agent of the board be
deemed incompatible or in conflict with such office or employment.
3. The members of the board appointed by the governor and all repre-
sentatives designated by members of the board shall serve without salary
or per diem allowance but shall be entitled to reimbursement for actual
and necessary expenses incurred in the performance of official duties
under this act, provided however that such members and representatives
are not, at the time such expenses are incurred, public employees other-
wise entitled to such reimbursement.
4. The governor and the mayor, jointly, shall appoint an executive
director of the board who shall serve at the pleasure of the board and
may be removed by the board. The board may delegate to the executive
director or to one or more of its other officers, employees or agents,
such powers and duties as the board may deem proper, except any duties
inconsistent with the duties and functions prescribed by any other
office or position any such person may hold.
§ 12-016. Section 7 of section 2 of chapter 868 of the laws of 1975,
constituting the New York state financial emergency act for the city of
New York, paragraphs a, b, c, e, f and g of subdivision 1, paragraphs
(b) and (f) of subdivision 3 and subdivisions 4 and 6 as amended and
subdivision 7 as added by chapter 777 of the laws of 1978, paragraph h
of subdivision 1 as amended by chapter 870 of the laws of 1975, para-
A. 10030 131
graphs d and i of subdivision 1 as amended by chapter 830 of the laws of
1987, subdivisions 3 and 5 as added by chapter 201 of the laws of 1978,
and paragraph (i) of subdivision 3 as amended by chapter 285 of the laws
of 1985, is amended to read as follows:
§ 7. Functions of the board. 1. In carrying out the purposes of this
act, the board shall perform the following functions:
a. In accordance with the provisions of section eight of this act, the
board shall (i) consult with the city and the covered organizations AND
TO THE EXTENT IT DEEMS IT NECESSARY OR APPROPRIATE TO ACCOMPLISH THE
PURPOSES OF THIS ACT, THE CITY OF STATEN ISLAND, in the preparation of
the financial plan, and certify to the city the revenue estimates
approved therein, (ii) prescribe the form of the financial plan and the
supporting information required in connection therewith, and (iii) exer-
cise the rights of approval, disapproval and modification with respect
to the financial plan, including but not limited to the revenue esti-
mates contained therein.
b. The board, to the extent it deems it necessary or appropriate in
order to accomplish the purposes of this act, shall establish and adopt
procedures with respect to the (i) proper maintenance of the board fund,
(ii) the deposit and investment of revenues in such fund and (iii)
disbursement of monies from such fund.
c. The board shall, from time to time and to the extent it deems
necessary or appropriate in order to accomplish the purposes of this
act, (i) review the operations, management, efficiency and productivity
of such city operations and of such covered organizations OR OF THE CITY
OF STATEN ISLAND or portions thereof as the board may determine, and
make reports thereon; (ii) audit compliance with the financial plan in
such areas as the board may determine; (iii) recommend to the city, THE
CITY OF STATEN ISLAND and the covered organizations such measures relat-
ing to their operations, management, efficiency and productivity as it
deems appropriate to reduce costs and improve services so as to advance
the purposes of this act; and (iv) obtain information of the financial
condition and needs of the city, THE CITY OF STATEN ISLAND and the
covered organizations. Nothing herein shall diminish the powers of the
comptroller otherwise provided by law and the board may request the
assistance of the comptroller in performing the above functions.
d. The board (i) shall receive from the city and review the reports to
be prepared by or on behalf of the city pursuant to section seven-a;
(ii) shall receive from the city, THE CITY OF STATEN ISLAND and the
covered organizations and from the deputy comptroller, and shall review
such financial statements and projections, budgetary data and informa-
tion, and management reports and materials as the board deems necessary
or desirable to accomplish the purposes of this act; and (iii) shall
inspect, copy and audit such books and records of the city, THE CITY OF
STATEN ISLAND and the covered organizations as the board deems necessary
or desirable to accomplish the purposes of this act.
e. All contracts entered into by the city or any covered organization
AND, TO THE EXTENT THE BOARD DEEMS NECESSARY OR DESIRABLE TO ACCOMPLISH
THE PURPOSES OF THIS ACT, BY THE CITY OF STATEN ISLAND must be consist-
ent with the provisions of this act and must comply with the require-
ments of the financial plan as approved by the board. With respect to
all contracts or other obligations to be entered into by the city or any
covered organization after October fifteenth, nineteen hundred seventy-
five, requiring the payment of funds or the incurring of costs by the
city or any covered organization:
A. 10030 132
(i) Within twenty days from the effective date of this act the mayor
shall present to the board proposed regulations respecting the catego-
ries and types of contracts and other obligations required to be
reviewed by the board pursuant to this subdivision [e]. Within thirty
days from the effective date of this act, the board shall approve or
modify and approve such proposed regulations or promulgate its own in
the event that such proposed regulations are not submitted to it within
the twenty days as provided for herein. Such regulations may thereafter
be modified by the board from time to time on not less than thirty days
notice to the mayor and the mayor may from time to time propose modifi-
cations to the board. Unless expressly disapproved or modified by the
board within thirty days from the date of submission by the mayor, any
such proposed regulations or modifications shall be deemed approved by
the board;
(ii) Prior to entering into any contract or other obligations subject
to review of the board under its regulations, the city or any covered
organization AND, TO THE EXTENT THE BOARD DEEMS NECESSARY OR DESIRABLE
TO ACCOMPLISH THE PURPOSES OF THIS ACT, THE CITY OF STATEN ISLAND shall
submit a copy of such contract or other obligation to the board accompa-
nied by an analysis of the projected costs of such contract or other
obligation and a certification that performance thereof will be in
accordance with the financial plan, all in such form and with such addi-
tional information as the board may prescribe. The board shall promptly
review the terms of such contract or other obligation and the supporting
information in order to determine compliance with the financial plan;
(iii) During a control period the board shall, by order, disapprove
any contract or other obligation reviewed by it only upon a determi-
nation that, in its judgment, the performance of such contract or other
obligation would be inconsistent with the financial plan and the city,
THE CITY OF STATEN ISLAND or covered organization shall not enter into
such contract or other obligation;
(iv) During a control period if the board approves the terms of a
reviewed contract or other obligation, the city or covered organization
AND, TO THE EXTENT THE BOARD DEEMS NECESSARY OR DESIRABLE TO ACCOMPLISH
THE PURPOSES OF THIS ACT, THE CITY OF STATEN ISLAND may enter into such
contract or other obligation upon the terms submitted to the board.
Failure of the board to notify the city, THE CITY OF STATEN ISLAND or
covered organization within thirty days (or such additional time not
exceeding thirty days as the board shall have notified the city or
covered organization, that it requires to complete its review and analy-
sis) after submission to it of a contract or other obligation that such
contract or other obligation has been disapproved shall be deemed to
constitute board approval thereof.
f. Upon submission thereof by the city, the board shall review the
terms of each proposed long-term and short-term borrowing by the city
and any covered organization to be effected during a control period but
after October fifteenth, nineteen hundred seventy-five, and no such
borrowing shall be made unless approved by the board. TO THE EXTENT THE
BOARD DEEMS NECESSARY OR DESIRABLE TO ACCOMPLISH THE PURPOSES OF THIS
ACT, DURING A CONTROL PERIOD, THE CITY OF STATEN ISLAND SHALL SUBMIT AND
THE BOARD SHALL REVIEW THE TERMS OF EACH PROPOSED LONG-TERM AND SHORT-
TERM BORROWING BY THE CITY OF STATEN ISLAND AND NO SUCH BORROWING SHALL
BE MADE UNLESS APPROVED BY THE BOARD. Each such proposed borrowing by a
covered organization shall be submitted to the city by the covered
organization before it may be considered by the board. Not more than
thirty days after any such submission by a covered organization the city
A. 10030 133
shall transmit any such proposed terms of borrowing to the board togeth-
er with the certification of the city as to whether such proposed terms
of borrowing are in accordance with the financial plan and are consist-
ent with the objectives and purposes of this act. Any such submission
to the city shall be accompanied by a certification of the covered
organization that the terms thereof are in accordance with the financial
plan and are consistent with the objectives or purposes of this act. The
transmittal by the city to the board shall include a recommendation by
the city for the approval or disapproval of such proposed terms of
borrowing pursuant to the terms of this paragraph. In the event the
city does not make such transmittal within such thirty day period, such
covered organization may submit such proposed borrowing directly to the
board. The board shall disapprove any borrowing if it determines that
such borrowing is inconsistent with the financial plan or the objectives
or purposes of this act. The board shall consult and coordinate with the
municipal assistance corporation for the city of New York with respect
to borrowings of the city and any covered organization and shall receive
reports from the [muncipal] MUNICIPAL assistance corporation for the
city of New York on its review of borrowings by the city. No covered
organizations shall be prohibited from issuing bonds or notes to pay
outstanding bonds or notes.
g. The board and the comptroller shall receive quarterly reports from
the city comptroller setting forth the debt service requirements on all
bonds and notes of the city and the covered organizations for the
following quarter, which reports shall be in such form and contain such
information as the board shall determine. Such reports shall be issued
no later than sixty days prior to the start of the quarter to which they
pertain and shall be updated immediately upon each issuance of bonds or
notes after the date of such report to reflect any change in debt
service requirements as a result of such issuance. The board also shall
receive from the city monthly and quarterly financial reports, which
reports shall be in such form and contain such information as the board
shall determine and shall be made available by the city to the public.
In order to avoid duplicative reports and reporting requirements, to the
extent that the city is required to submit monthly or quarterly finan-
cial reports to the department of the treasury pursuant to any agreement
or arrangement made in connection with federal guarantees of notes or
boards issued by the city or a state financing agency, copies of such
reports shall be submitted to the board in satisfaction of the monthly
and quarterly reporting requirements set forth above, together with such
additional information as the board may require. Each monthly and quar-
terly report herein required to be submitted to the board must indicate
any variance between actual and budgeted revenues, expenses or cash for
the period covered by such report. DURING A CONTROL PERIOD, TO THE
EXTENT THE BOARD DEEMS NECESSARY OR DESIRABLE TO ACCOMPLISH THE PURPOSES
OF THIS ACT, THE CITY OF STATEN ISLAND SHALL BE SUBJECT TO THE SAME
REPORTING REQUIREMENTS AS THE CITY.
h. The board shall issue, to the appropriate officials of the city,
THE CITY OF STATEN ISLAND and the covered organizations, such orders as
it deems necessary to accomplish the purposes of this act, including but
not limited to timely and satisfactory implementation of an approved
financial plan. Any order so issued shall be binding upon the official
to whom it was issued and failure to comply with such order shall
subject the official to the penalties described in section eleven of
this act.
A. 10030 134
i. The board shall coordinate with the municipal assistance corpo-
ration for the city of New York and the deputy comptroller with respect
to the performance of its review and monitoring of the revenues and
expenditures of the city and the covered organizations.
2. In the event of any default by the city on its outstanding bonds or
notes, and so long as such default has not been cured BY THE CITY, the
board may, any provisions of this act notwithstanding, take any action
that it is authorized to take pursuant to title six-A of article two of
the local finance law, and may direct the city to take any action that
the city is authorized to take under such law.
3. (a) Notwithstanding any provision of the New York City Collective
Bargaining Law, codified as chapter [fifty-four] THREE OF TITLE TWELVE
of the New York city administrative code, or any general or special law
to the contrary, any report or recommendation of an impasse panel
constituted pursuant to such chapter which provides for an increase in
wages or fringe benefits of any employee of the city or covered organ-
ization, in addition to considering any standard or factor required to
be considered by applicable law, including the standards enumerated in
section [1173-7.0] 12-311(c)(3)(b) of such chapter, shall also take into
consideration and accord substantial weight to the financial ability of
the city and or covered organization to pay the cost of such increase in
wages or fringe benefits.
(b) The board of collective bargaining constituted pursuant to such
chapter, when reviewing such report or recommendation before proceeding
to other issues, shall make a threshold determination as to whether such
report or recommendation for an increase in wages or fringe benefits is
within the city's and or covered organization's financial ability to
pay. If the threshold determination is in the negative, the matter shall
be remitted to the impasse panel for further consideration. If the
threshold determination is in the affirmative, the further review of the
report or recommendation with respect to other issues, if any, shall
proceed as provided by law. Unless the parties stipulate otherwise, the
threshold determination shall be made within thirty days after
submission of the report or recommendation to the board of collective
bargaining.
(c) Any determination pursuant to article eight of the labor law or
any agreement or stipulation entered into in lieu thereof which provides
for an increase in wages or fringe benefits of any employee of the city
or covered organization shall, in addition to considering any standard
or factor required to be considered by applicable law, also take into
consideration and accord substantial weight to the financial ability of
the city and or covered organization to pay the cost of such increase.
(d) Any report or recommendation of a fact finding or similar type
panel or any interest arbitration award which provides for an increase
in wages or fringe benefits of any employee of the city or covered
organization not subject to the provisions of the New York City Collec-
tive Bargaining Law, codified as chapter [fifty-four] THREE OF TITLE
TWELVE of the New York city administrative code, shall, in addition to
considering any standard or factor required to be considered by applica-
ble law, also take into consideration and accord substantial weight to
the financial ability of the city and or covered organization to pay the
cost of such increase.
(e) Any party to a proceeding before the board of collective bargain-
ing as described in paragraph (b) or other body as described in para-
graphs (c) or (d) [hereof] OF THIS SUBDIVISION may commence a special
proceeding in the appellate division, first department, supreme court,
A. 10030 135
state of New York, to review the threshold determination as to the city
and/or covered organization's financial ability to pay. Such proceeding
shall be commenced not later than thirty days after the final determi-
nation has been made by the board of collective bargaining in the case
of paragraph (b) or other body in the case of paragraphs (c) or (d) OF
THIS SUBDIVISION. Such proceeding shall have preference over all other
causes in such appellate division, other than causes relating to the
election law.
(f) The court shall make a de novo review of the record solely for the
purpose of determining whether an award of an increase in wages or
fringe benefits was within the city's and or covered organization's
financial ability to pay. The court's findings as to such issue shall be
based upon a preponderance of all the evidence set forth in the record.
Unless the parties stipulate otherwise, arguments or submission shall be
had within fifteen days after commencement of the special proceeding and
the court shall render its decision within fifteen days thereafter. All
questions, other than the question relating to the threshold determi-
nation, shall be reviewed by the appellate division in the same proceed-
ing in the manner provided by articles seventy-five or seventy-eight of
the civil practice law and rules as may be appropriate, notwithstanding
that the issue would otherwise have been cognizable in the first
instance before a special or trial term of the supreme court. If an
appeal shall otherwise lie from such determination of the appellate
division to the court of appeals, notice of such appeal shall be filed
within thirty days after the entry of the final order or judgment of the
appellate division if such appeal is of right or within ten days after
entry of an order granting leave to appeal and such appeal shall have
preference over all other appeals other than appeals relating to the
election law.
(g) At any stage of any proceeding under paragraphs (a), (b), (c), (d)
and (e) hereof or any appeal from an order or judgment therefrom, the
board may intervene as a party on the issue of the financial ability of
the city and or covered organization to pay the cost of an increase in
wages or fringe benefits.
(h) For the purposes of this subdivision, financial ability to pay
shall mean the financial ability of the city and or covered organization
to pay the cost of any increase in wages or fringe benefits without
requiring an increase in the level of city taxes existing at the time of
the commencement of a proceeding under paragraph (a), (c) or (d) hereof.
[(i) The provisions of this subdivision shall terminate on June thir-
tieth, nineteen hundred eighty-six.]
4. During a control period, except upon approval by the board in
accordance with the provisions of paragraph e or f of subdivision one of
this section, as the board shall determine, neither the city nor a
covered organization NOR, TO THE EXTENT THE BOARD DEEMS NECESSARY OR
DESIRABLE TO ACCOMPLISH THE PURPOSES OF THIS ACT, THE CITY OF STATEN
ISLAND shall enter any agreement or other arrangement, whether or not it
creates a debt of the city, THE CITY OF STATEN ISLAND or a covered
organization, pursuant to which the revenues or credit of the city OR
THE CITY OF STATEN ISLAND may be directly or indirectly pledged, encum-
bered, committed or promised, contingently or otherwise, for the payment
of obligations of a public benefit corporation. Nothing in this subdivi-
sion shall limit the right of the city to comply with the provisions of
any existing agreement or other arrangement in respect of the obli-
gations of a public benefit corporation.
A. 10030 136
5. The board may employ such consultants as it may deem necessary to
assist it in performing its functions required under this act.
6. The board shall have the authority to make and execute agreements
and all other instruments which the board deems necessary for the exer-
cise of its powers and functions including, in connection with any
agreement by the federal government or any agency or instrumentality
thereof to guarantee the payment of the principal of or interest on
bonds or notes issued by the city or by a state financing agency, to
enter into one or more agreements containing terms and conditions
required by the secretary of the treasury pursuant to the New York City
Loan Guarantee Act of l978, Public Law 95-339 with the federal govern-
ment or any agency or instrumentality thereof with respect to such guar-
antee or any matters related thereto and to comply with such terms and
conditions.
7. The board may appoint qualified individuals to participate as
members of such audit, productivity or similar committees or councils as
the city may from time to time establish in consultation with the board.
Such individuals, however, shall not be deemed to be officers, employees
or agents of the board. The board shall review and report on, not less
than annually, the development and implementation of methods for enhanc-
ing the productivity of the city's labor force proposed by any such
committee or council.
§ 12-017. Section 8 of section 2 of chapter 868 of the laws of 1975,
constituting the New York state financial emergency act for the city of
New York, subdivisions 1, 2, 4, 5 and 6 as amended by chapter 201 of the
laws of 1978, the opening paragraph and paragraph c of subdivision 1,
subdivisions 2-a and 3 as amended by chapter 777 of the laws of 1978,
paragraph a of subdivision 1 as amended by chapter 118 of the laws of
2020, is amended to read as follows:
§ 8. Development of the financial plan. 1. Pursuant to the proce-
dures contained in subdivision three of this section, each year the
city AND TO THE EXTENT THE BOARD DEEMS NECESSARY OR DESIRABLE TO ACCOM-
PLISH THE PURPOSES OF THIS ACT, THE CITY OF STATEN ISLAND shall develop,
and may from time to time modify, with the approval of the board during
a control period, a four year financial plan covering the city and the
covered organizations OR THE CITY OF STATEN ISLAND, AS APPLICABLE.
Each such financial plan and financial plan modification shall comply
with the requirements of subdivision four of this section and shall,
except as otherwise provided pursuant to subdivision two-a of this
section, conform to the following standards:
a. For its fiscal years ending June thirtieth, nineteen hundred seven-
ty-nine through June thirtieth, nineteen hundred eighty-one, the city's
budget covering all expenditures other than capital items shall be
prepared and balanced so that the results thereof would not show a defi-
cit when reported in accordance with the accounting principles set forth
in the state comptroller's uniform system of accounts for munici-
palities, as the same may be modified by the comptroller, in consulta-
tion with the city comptroller, for application to the city; subject to
the provision of subdivision four of section three thousand thirty-eight
of the public authorities law with respect to contributions by the city
or other public employer to any retirement system or pension fund and
subject to the provision of paragraph (c) of subdivision five of section
three thousand thirty-eight of the public authorities law with respect
to expense items included in the capital budget of the city. For the
fiscal year ending June thirtieth, nineteen hundred eighty-two, and for
each fiscal year thereafter, the city's budget covering all expenditures
A. 10030 137
other than capital items shall be prepared and balanced so that the
results thereof would not show a deficit when reported in accordance
with generally accepted accounting principles and would permit compar-
ison of the budget with the report of actual financial results prepared
in accordance with generally accepted accounting principles. With
respect to financial plans that include the fiscal years ending June
thirtieth, nineteen hundred seventy-nine through June thirtieth, nine-
teen hundred eighty-one, the city's budget covering all expenditures
other than capital items shall be prepared in accordance with generally
accepted accounting principles and there shall be substantial progress
in each such fiscal year towards achieving a city budget covering all
expenditures other than capital items the results of which would not
show a deficit when reported in accordance with generally accepted
accounting principles. The city shall eliminate expense items from its
capital budget not later than the commencement of the fiscal year ending
June thirtieth, nineteen hundred eighty-two. For the fiscal year ending
June thirtieth, nineteen hundred eighty-nine, and for each fiscal year
thereafter, the budgets covering all expenditures other than capital
items of each of the covered organizations shall be prepared and
balanced so that the results thereof would not show a deficit when
reported in accordance with generally accepted accounting principles;
and for each fiscal year prior thereto, there shall be substantial
progress towards such goal. Notwithstanding the foregoing and the
provisions of any general or special state law or local law to the
contrary, including but not limited to the New York city charter: (i)
all costs that would be capital costs in accordance with generally
accepted accounting principles, but for the application of governmental
accounting standards board statement number forty-nine, shall be deemed
to be capital costs for purposes of this act and any other provision of
state or local law, including but not limited to the New York city char-
ter, relevant to the treatment of such costs; and (ii) the determination
as to the existence of a deficit pursuant to this act and any other
provision of state or local law, including but not limited to the New
York city charter, shall be made without regard to changes in restricted
fund balances, as defined by the governmental accounting standards
board, where restrictions in relation to such fund balances are imposed
by state or federal law or regulation, or otherwise by private or
governmental parties other than the city of New York, and without regard
to funds held in the health stabilization fund, the school crossing
guards health insurance fund, any revenue stabilization fund established
pursuant to section fifteen hundred twenty-eight of the New York city
charter and the management benefits fund established by the city of New
York. Deposits into any such revenue stabilization fund shall be deemed
to be expenses of such city in the fiscal year in which such deposits
are made, and withdrawals from such fund shall be deemed to be revenues
of such city in the year in which such withdrawals are made; provided
however, that surpluses of such city, whether accumulated from fiscal
years ending prior to the effective date of the chapter of the laws of
two thousand twenty that amended this paragraph or existing at the close
of any fiscal year ending after such effective date, shall be deposited
into such revenue stabilization fund as soon as practicable, and such
deposits shall not be deemed expenses of the city in the fiscal year in
which such deposits are made.
b. The limitations on its outstanding short-term obligations required
by subdivision nine of section three thousand thirty-eight of the public
A. 10030 138
authorities law and by section nine-b of this act shall be observed at
all times, as each is amended from time to time.
c. Provision shall be made for the payment in full of the debt
service on all bonds and notes of the city and the covered organizations
(other than notes held by the municipal assistance corporation for the
city of New York to the extent that such corporation has evidenced its
intention not to present such notes for payment during the fiscal year
in which the determination is made provided that such notes were held by
such corporation on June thirtieth, nineteen hundred seventy-eight or
were issued in exchange for or in refunding or renewal of notes held by
such corporation on such date) AND TO THE EXTENT THE BOARD DEEMS NECES-
SARY OR DESIRABLE TO ACCOMPLISH THE PURPOSES OF THIS ACT, THE CITY OF
STATEN ISLAND, for the adequate funding of programs of the city, THE
CITY OF STATEN ISLAND, IF APPLICABLE and the covered organizations which
are mandated by state or federal law and for which obligations are going
to be incurred during the fiscal year and for payment of a guarantee fee
or any other amounts required by the United States of America or any
agency or instrumentality thereof in connection with the guarantee of
the payment of the principal of or interest on bonds or notes issued by
the city.
d. All projections of revenues and expenditures contained in a finan-
cial plan shall be based on reasonable and appropriate assumptions and
methods of estimation. All cash flow projections shall be based upon
reasonable and appropriate assumptions as to sources and uses of cash
(including but not limited to the timing thereof), and shall provide for
operations of the city, THE CITY OF STATEN ISLAND, IF APPLICABLE and
covered organizations to be conducted within the cash resources so
projected.
e. The city shall provide a general reserve for each fiscal year to
cover potential reductions in its projected revenues or increases in its
projected expenditures during each such fiscal year. The amount
provided for such general reserve shall be estimated by the city in
accordance with paragraph d of this subdivision, but in no event shall
it be less than one hundred million dollars at the beginning of any
fiscal year.
f. For financial plans beginning with the fiscal year ending June
thirtieth, nineteen hundred eighty-three or any succeeding fiscal year,
the first fiscal year included in any financial plan shall make
provision for the repayment of any deficit incurred by the city during
the preceding fiscal year.
2. In developing the financial plan the city shall seek to achieve a
stabilized work force for the city and, to the extent a reduction in the
work force is required, primary recourse shall be had to the attrition
process to accomplish such reduction.
2-a. The city and the board shall confer concerning the projected
effect on the budgets of the city and the covered organizations of any
change in generally accepted accounting principles, or change in the
application of generally accepted accounting principles to the city and
the covered organizations, made after the effective date of this act.
If the board determines that immediate compliance with such change will
have a material effect on such budgets over a time period insufficient
to accommodate the effect without a substantial adverse impact on the
delivery of essential services, the board may authorize and approve a
method of phasing the requirements of such change into such budgets over
such reasonably expeditious time period as the board deems appropriate.
A. 10030 139
3. The financial plan shall be developed and, during a control peri-
od, shall be approved, and may from time to time be modified, in accord-
ance with the following procedures:
a. The city shall, by June first, nineteen hundred seventy-eight,
prepare and submit a financial plan to the board covering the four year
period which begins with the fiscal year ending June thirtieth, nineteen
hundred seventy-nine. Thereafter, at least fifty days prior to the
beginning of each fiscal year or on such other date as the board may
approve upon the request of the city OR THE CITY OF STATEN ISLAND, IF
APPLICABLE, the city, AND, DURING A CONTROL PERIOD, TO THE EXTENT THE
BOARD DEEMS NECESSARY OR DESIRABLE TO ACCOMPLISH THE PURPOSES OF THIS
ACT, THE CITY OF STATEN ISLAND shall prepare and submit a financial plan
to the board covering the four year period beginning with such fiscal
year. On such dates the mayor shall also submit to the board the city's
executive expense, revenue and capital budgets for the ensuing fiscal
year and a certificate of the mayor stating that such budgets are
consistent with the financial plan submitted therewith, that projections
contained in the budgets and financial plan are based upon reasonable
and appropriate assumptions and methods of estimation, and that opera-
tion within the budgets is feasible.
b. (i) During a control period the board shall promptly review each
financial plan and financial plan modification submitted by the city OR,
THE CITY OF STATEN ISLAND, IF APPLICABLE. Not more than forty-five days
after submission of a financial plan or more than thirty days after
submission of a financial plan modification the board shall determine
whether the financial plan or financial plan modification is complete
and complies with the standards set forth in subdivision one of this
section and shall approve or disapprove the financial plan or financial
plan modification in accordance with the provisions of this section. If
the board determines that the financial plan or financial plan modifica-
tion is complete and complies with the standards set forth in subdivi-
sion one of this section, the board shall approve the financial plan or
financial plan modification. Upon making such determination the board
shall make a certification to the city OR, THE CITY OF STATEN ISLAND, IF
APPLICABLE, setting forth revenue estimates approved by the board in
accordance with such determination.
(ii) At all times other than during a control period the board shall
promptly review each financial plan and financial plan modification
submitted by the city. If the board determines after such review that
the financial plan or financial plan modification submitted by the city
is not in accordance with the standards set forth in subdivision one of
this section, the board shall promptly so notify the city and may take
such other action under this act as it deems appropriate.
c. The board shall disapprove a financial plan or financial plan
modification if during a control period it determines that the financial
plan or financial plan modification is incomplete or fails to comply
with the provisions of subdivision one of this section. In disapproving
a financial plan or a financial plan modification the board may order
that one or more of the following actions be taken:
(i) expenditures or reserves to assure availability of amounts
required for debt service requirements on all bonds and notes of the
city, THE CITY OF STATEN ISLAND, IF APPLICABLE and the covered organiza-
tions or expenditures required for adequate funding of programs of the
city, THE CITY OF STATEN ISLAND, IF APPLICABLE and the covered organiza-
tions mandated by state or federal law and for which obligations are
A. 10030 140
going to be incurred during the fiscal year, be increased to the levels
required to provide for their payment in full;
(ii) the revenue projections (or any item thereof) during any period
be adjusted to comply with the standards set forth in subdivision one of
this section; and
(iii) the aggregate expenditures projected for any period be reduced
to conform to revenue estimates certified by the board in order to
comply with the standards set forth in subdivision one of this section.
d. During a control period in the event that the city OR THE CITY OF
STATEN ISLAND, IF APPLICABLE shall, for any reason, fail to submit a
financial plan prior to the beginning of a fiscal year, as required by
paragraph a of this subdivision, or in the event that the board has not,
for any reason permitted under this act, approved a financial plan
submitted by the city OR THE CITY OF STATEN ISLAND, IF APPLICABLE prior
to the beginning of a fiscal year, the board shall formulate and adopt a
financial plan to be effective until the board approves a financial plan
submitted by the city OR THE CITY OF STATEN ISLAND, IF APPLICABLE. Any
financial plan so formulated by the board shall comply with the stand-
ards set forth in subdivision one of this section. The budgets and
operations of the city OR THE CITY OF STATEN ISLAND, IF APPLICABLE and
the covered organizations at all times shall be in conformance and
compliance with the RESPECTIVE financial plan then in effect.
e. After the initial adoption by the city, or the approval by the
board during a control period, OR, DURING A CONTROL PERIOD, TO THE
EXTENT THE BOARD DEEMS NECESSARY OR DESIRABLE TO ACCOMPLISH THE PURPOSES
OF THIS ACT, THE INITIAL ADOPTION BY THE CITY OF STATEN ISLAND, of a
financial plan, projections of revenues and expenditures and other esti-
mates contained in the financial plan shall be reexamined by the board
at least quarterly in consultation with the city and the covered organ-
izations, and during a control period the city OR THE CITY OF STATEN
ISLAND, AS APPLICABLE shall prepare and submit to the board financial
plan modifications at such times, in such detail and within such time
periods as the board may require in order to modify the RESPECTIVE
financial plan to conform to the standards set forth in subdivision one
of this section. During a control period in the event the board deter-
mines that (i) revenue estimates (or any item thereof) must be adjusted
to ensure compliance with the standards set forth in subdivision one of
this section, or (ii) that the city or a covered organization OR THE
CITY OF STATEN ISLAND, AS APPLICABLE is expending funds at a rate that
would cause expenditures to exceed the aggregate expenditure limitation
for the city or covered organization OR THE CITY OF STATEN ISLAND, AS
APPLICABLE provided for in the financial plan then in effect, prior to
the expiration of the fiscal year, the city OR THE CITY OF STATEN
ISLAND, AS APPLICABLE shall submit a financial plan modification to
effect such adjustments in revenue estimates and reductions in total
expenditures as may be necessary to conform to such standards or aggre-
gate expenditure limitations. If during a control period the city fails
to submit such modification after such determination as to adjustments
in revenue estimates or such determination as to rates of expenditures,
or to submit a financial plan modification in the detail or within the
time period specified by the board, or if such modification is disap-
proved by the board as not conforming to the standards set forth in
subdivision one of this section, the board may formulate and adopt such
financial plan modification as it deems appropriate to ensure that the
financial plan WITH RESPECT TO SUCH ENTITY continues to meet such stand-
ards. Such modification shall become effective on its adoption.
A. 10030 141
Notwithstanding the provisions of this section, in the event the city OR
THE CITY OF STATEN ISLAND, AS APPLICABLE shall determine that, due to
unforeseen events during a fiscal year, compliance with the standards
set forth in paragraph a of subdivision one of this section would result
in a material adverse impact upon the delivery of essential services,
the city OR THE CITY OF STATEN ISLAND, AS APPLICABLE shall notify the
board of such determination, together with such information, projections
or analyses relating thereto as the board may require, and shall submit
a modification to the financial plan reflecting such determination.
During a control period the board shall disapprove any such modification
unless it finds that (i) [the city's] SUCH determination is supported by
information, projections and analyses which the board deems substantial-
ly accurate in all material respects and (ii) such events, in its judg-
ment, warrant such modification to the financial plan to avoid such
adverse impact on the delivery of essential services.
f. The city OR THE CITY OF STATEN ISLAND may, from time to time,
submit financial plan modifications TO EACH PLAN for review by the
board. During a control period the board shall approve such modifica-
tions unless it determines that such modifications would constitute
grounds for disapproval of the financial plan pursuant to paragraph c of
this subdivision, or if applicable, pursuant to paragraph e of this
subdivision.
g. Anything contained in this act to the contrary notwithstanding,
during a control period the board may at any time disapprove or after
consultation with the city OR THE CITY OF STATEN ISLAND, AS APPROPRIATE,
revise the revenue estimates (or any item thereof) prepared by the city
OR THE CITY OF STATEN ISLAND in connection with the preparation of a
financial plan or any modification thereto and determined by the board
not to be based on assumptions and methods of estimation which are
reasonable and appropriate under the circumstances and in view of the
objectives and purposes of the act. The board may after consultation
with the city OR THE CITY OF STATEN ISLAND, AS APPROPRIATE, determine
the estimated revenues of the city OR THE CITY OF STATEN ISLAND, AS
APPROPRIATE, and the covered organizations provided, however, that any
revenues estimated by the board shall be based on reasonable and appro-
priate assumptions and methods of estimation.
4. Each financial plan shall be in such form and shall contain such
information for each year during which the financial plan is in effect
as the board may specify, and shall, in such detail as the board may
from time to time prescribe, include projections of all revenues,
expenditures and cash flows (including but not limited to projected
capital expenditures and debt issuances) and a schedule of projected
capital commitments of the city OR THE CITY OF STATEN ISLAND, AS APPRO-
PRIATE, and except in such instances as the board may deem appropriate
each of the covered organizations. In addition, each financial plan and
financial plan modification shall include a statement of the significant
assumptions and methods of estimation used in arriving at the projec-
tions contained therein, set forth in such form and in such detail as
the board may from time to time prescribe.
5. The city and the covered organizations AND DURING A CONTROL PERIOD
TO THE EXTENT THE BOARD DEEMS NECESSARY OR DESIRABLE TO ACCOMPLISH THE
PURPOSES OF THIS ACT, THE CITY OF STATEN ISLAND shall promptly furnish
the board with any information which the board may request to satisfy
itself that (i) projected employment levels, collective bargaining
agreements and other action relating to employee costs, capital
construction and such other matters as the board may specify, are
A. 10030 142
consistent with the provisions made for such costs in the financial
plan, (ii) the city and the covered organizations OR THE CITY OF STATEN
ISLAND, AS APPROPRIATE are taking whatever action is necessary with
respect to programs mandated by state and federal law to ensure that
expenditures for such programs are limited to and covered by the expend-
itures stated in the financial plan, and (iii) adequate reserves are
provided to maintain programs mandated by state and federal law and for
which obligations are going to be incurred in the fiscal year and other
essential programs in the event revenues have been overestimated or
expenditures underestimated for any period.
6. For each financial plan and financial plan modification to be
prepared and submitted by the city to the board pursuant to the
provisions of this section, the covered organizations shall submit to
the city such information with respect to their projected expenditures,
revenues, cash flows and a schedule of projected capital commitments
for each year covered by such financial plan or modification as the city
shall determine. Notwithstanding any other provision of law limiting
the authority of the city with respect to any covered organization, the
city, in the preparation and submission of the financial plan and
modifications thereof, shall (except for debt service or for other
expenditures to the extent that such expenditures are required by law)
have the power to determine the aggregate expenditures to be allocated
to any covered organization in the financial plan and any modifications
thereto.
§ 12-018. Section 9 of section 2 of chapter 868 of the laws of 1975,
constituting the New York state financial emergency act for the city of
New York, as amended by chapter 201 of the laws of 1978 and the section
heading and subdivisions 1 and 4 as amended by chapter 777 of the laws
of 1978, is amended to read as follows:
§ 9. Establishment and application of the board fund. 1. There is
hereby established a fund designated the board fund. Commencing on
October twentieth, nineteen hundred seventy-five, and for the duration
of a control period, all revenues received or to be received by the city
or any covered organization AND TO THE EXTENT THE BOARD DEEMS NECESSARY
OR DESIRABLE TO ACCOMPLISH THE PURPOSES OF THIS ACT, THE CITY OF STATEN
ISLAND shall, unless exempted by order of the board, be revenues of the
board fund and shall be for the account of the city, THE CITY OF STATEN
ISLAND or the appropriate covered organizations, except (i) to the
extent expressly prohibited by federal law, (ii) where revenues of the
city are deposited in the general debt service fund, the TAN debt
service account or the RAN debt service account, or (iii) where such
revenues are pledged to the payment of any outstanding bonds, notes or
other obligations of covered organizations or state public authorities
as defined in section two hundred one of the civil service law.
Disbursement from the board fund shall be made by the board in accord-
ance with the approved financial plan except as provided in subdivision
five of this section nine. Commencing on October twentieth, nineteen
hundred seventy-five, and for the duration of a control period, all
funds and accounts established or thereafter established by the city,
THE CITY OF STATEN ISLAND or the covered organizations shall, unless
exempted by order of the board, thereafter be funds and accounts of the
board fund except to the extent expressly prohibited by federal law or
to the extent pledged by covenants or agreements relating to any
outstanding bonds, notes or other obligations of covered organizations
or public authorities as defined in section two hundred one of the civil
service law; and no monies or funds held in the general debt service
A. 10030 143
fund, the TAN debt service account or the RAN debt service account shall
be part of the board fund. All such accounts of the board shall have
such captions and entries as the board shall determine to be necessary
to credit the foregoing revenues and receipts to the board fund. The
monies of the fund shall not be deemed to be money of the state or money
under its control.
2. The deposit of revenues into the board fund and the investment or
deposit of monies therein shall be made in accordance with and pursuant
to procedures established by the board.
3. In order to assure compliance with the financial plan, the board
shall from time to time adopt procedures controlling the disbursement of
monies from the board fund. The board shall authorize the city OR, IF
APPLICABLE, THE CITY OF STATEN ISLAND to make all disbursements of
[city] SUCH ENTITY'S revenues from the board fund, which disbursements
shall be made in accordance with the approved financial plan; provided,
that the board may withdraw such authorization if it determines that (a)
any disbursements made or to be made by the city OR, IF APPLICABLE, THE
CITY OF STATEN ISLAND have not been or are likely not to be in compli-
ance with the approved financial plan, (b) the city OR, IF APPLICABLE,
THE CITY OF STATEN ISLAND has violated any other provisions of this act,
or (c) the city has violated an agreement with any holder or guarantor
of bonds or notes issued by the city or a state financing agency.
4. Within the board fund there is hereby established a special
account designated the debt service repayment account. The board shall
from time to time direct, in accordance with procedures adopted by the
board, the deposit in the debt service repayment account of such amounts
as the board shall, in its discretion, determine to be sufficient to
meet the debt service requirements of the covered organizations on their
bonds and notes (other than bonds and notes of covered organizations
payable from revenues not included in the board fund) as they become
due. Amounts in the debt service repayment account shall be used to
meet such debt service requirements of the covered organizations.
5. If at any time the board determines that the amount then held in
the board fund or the amount estimated by the board to be held in the
board fund is or will be insufficient to meet the expenditures in the
amounts and at the times required by the financial plan, the board shall
require disbursements from the board fund to be made in the following
order or priority unless otherwise required by law of the United States
of America: (i) the payment of amounts from the APPROPRIATE ACCOUNT OF
THE board fund to the debt service repayment account, the general debt
service fund, the TAN debt service account and the RAN debt service
account, to maintain therein the amount required, to meet debt service
requirements of the city, THE CITY OF STATEN ISLAND, IF APPROPRIATE and
the covered organizations on their bonds and notes as they may become
due, (ii) the payment of other liabilities having statutory or contrac-
tual priority over remaining liabilities of the city , THE CITY OF
STATEN ISLAND, IF APPROPRIATE and the covered organizations whose monies
are included in the board fund, and (iii) the payment of other obli-
gations on an allocated basis as specified by the city OR, THE CITY OF
STATEN ISLAND, IF APPROPRIATE, for expenditures in accordance with the
financial plan provided that, in the event that the city OR, THE CITY OF
STATEN ISLAND, IF APPROPRIATE, fails to so specify, the board may with-
hold payment of any of such other obligations or may direct their
payment pro rata.
A. 10030 144
6. The board shall cause to be performed such pre-audit and post-au-
dit reviews of the board funds and disbursements therefrom as it may
determine.
§ 12-019. Section 9-a of section 2 of chapter 868 of the laws of 1975,
constituting the New York state financial emergency act for the city of
New York, as added by chapter 201 of the laws of 1978, subdivisions 1,
2, 3, 4, 6, 7, 8, 9 and 11 as amended, subdivision 10 as renumbered and
amended and subdivision 12 as added by chapter 777 of the laws of 1978,
is amended to read as follows:
§ 9-a. Establishment and application of a general debt service fund.
1. Commencing on the first day of the first full fiscal quarter subse-
quent to the first sale of a federally guaranteed city obligation, the
city shall establish a general debt service fund for the purpose of
paying debt service due or becoming due in the then current fiscal year
and in subsequent fiscal years UNTIL THE LATER OF (I) THE TERMINATION
DATE OF THIS ACT OR (II) THE DATE WHEN ALL GENERAL OBLIGATION BONDS OF
THE CITY OUTSTANDING AS OF THE ESTABLISHMENT OF THE CITY OF STATEN
ISLAND HAVE BEEN PAID OR PAYMENT THEREFOR HAS BEEN PROVIDED FOR IN
ACCORDANCE WITH THEIR TERMS. All monies in the fund shall be held by
the comptroller, who shall administer and maintain the fund in accord-
ance with the provisions of this section.
2. All payments of or on account of real estate taxes or assessments
DUE TO THE CITY OR THE CITY OF STATEN ISLAND, other than the proceeds of
tax anticipation notes, shall be immediately upon receipt deposited in
AN ACCOUNT DESIGNATED FOR THE MUNICIPALITY TO WHICH PAYMENT WAS DUE
ESTABLISHED IN such fund. The comptroller shall retain, disburse and
apply monies in the fund during each month as follows:
a. During the first month of each fiscal quarter, there shall be
retained in the fund, subject to the provisions of subdivision three of
this section, all real estate tax payments deposited in the fund until
there shall have been retained from monies so deposited during such
month IN THE APPLICABLE ACCOUNT an amount equal to the total monthly
debt service, computed as of the date of any disbursement of money from
the fund, for the second and third months of such fiscal quarter;
provided that such amount shall be reduced by any amount already on
deposit in the fund which may be used to pay the monthly debt service
for such months.
AMOUNTS TO BE ON DEPOSIT IN SUCH ACCOUNTS SHALL BE DETERMINED AS
FOLLOWS: (I) WITH RESPECT TO THE ACCOUNT OF THE CITY, DEBT SERVICE SHALL
INCLUDE PAYMENTS WITH RESPECT TO (A) ALL BONDS AND NOTES OF THE CITY
ISSUED ON OR AFTER THE DATE OF ESTABLISHMENT OF THE CITY OF STATEN
ISLAND AND (B) ALL BONDS OR NOTES OF THE CITY PRIOR THERETO MULTIPLIED
BY A FRACTION, THE NUMERATOR OF WHICH IS THE TOTAL ASSESSED VALUATION OF
ALL TAXABLE REAL PROPERTY LOCATED IN THE CITY AS OF THE DATE OF SUCH
ESTABLISHMENT AND THE DENOMINATOR OF WHICH IS THE TOTAL ASSESSED VALU-
ATION OF ALL TAXABLE REAL PROPERTY LOCATED IN THE CITY AND THE CITY OF
STATEN ISLAND COMBINED AS OF THE DATE OF SUCH ESTABLISHMENT AND (II)
WITH RESPECT TO THE ACCOUNT OF THE CITY OF STATEN ISLAND, DEBT SERVICE
SHALL INCLUDE PAYMENTS WITH RESPECT TO (A) ALL BONDS OR NOTES OF THE
CITY OF STATEN ISLAND AND (B) ALL BONDS OR NOTES OF THE CITY ISSUED
PRIOR TO THE ESTABLISHMENT OF THE CITY OF STATEN ISLAND MULTIPLIED BY A
FRACTION, THE NUMERATOR OF WHICH IS THE TOTAL ASSESSED VALUATION OF ALL
TAXABLE REAL PROPERTY LOCATED IN THE CITY OF STATEN ISLAND AS OF THE
DATE OF SUCH ESTABLISHMENT AND THE DENOMINATOR OF WHICH IS THE SAME AS
IN CLAUSE (B) OF SUBPARAGRAPH (I) OF THIS PARAGRAPH. TO THE EXTENT
EITHER ACCOUNT CONTAINS INSUFFICIENT AMOUNTS TO MAKE PAYMENTS ON THE
A. 10030 145
RESPECTIVE ALLOCABLE PORTION OF CITY BONDS OR NOTES ISSUED PRIOR TO THE
ESTABLISHMENT OF THE CITY OF STATEN ISLAND AND SUCH MUNICIPALITIES OWN
BONDS OR NOTES ISSUED SUBSEQUENT THERETO, AMOUNTS ON DEPOSIT IN THE
ACCOUNT OF THE OTHER MUNICIPALITY IN EXCESS OF THE AMOUNTS REQUIRED TO
PROVIDE FOR PAYMENT OF SUCH LATTER MUNICIPALITY'S OWN BONDS OR NOTES
ISSUED SUBSEQUENT TO SUCH ESTABLISHMENT AND ALLOCABLE PORTION OF CITY
BONDS OR NOTES ISSUED PRIOR THERETO, SHALL BE RETAINED IN SUCH ACCOUNT
AND APPLIED TO THE PAYMENT OF BONDS OR NOTES OF THE CITY ISSUED PRIOR TO
SUCH ESTABLISHMENT TO THE EXTENT OF ANY INSUFFICIENCY IN SUCH ACCOUNTS.
For purposes of this section, fiscal quarter shall mean the three-
month period beginning July first, October first, January first or April
first, and monthly debt service shall mean, as of any date of computa-
tion, the amount of monies equal to the aggregate of (i) all interest
payable during such month on bonds and notes of the city OR THE CITY OF
STATEN ISLAND, AS APPLICABLE, plus (ii) the amount of principal (includ-
ing payments into sinking funds) maturing or otherwise coming due during
such month on all bonds of the city OR THE CITY OF STATEN ISLAND, AS
APPLICABLE, (excluding principal payments made from sinking funds
required by the terms of certain city OR THE CITY OF STATEN ISLAND, AS
APPLICABLE, bonds), plus (iii) the amount of principal to be paid on
notes of the city OR THE CITY OF STATEN ISLAND, AS APPLICABLE, during
such month from sources other than the proceeds of bonds or renewal
notes (exclusive of revenue anticipation notes and tax anticipation
notes or renewals thereof issued less than two years prior to the date
of computation).
b. During the second and third months of each fiscal quarter, there
shall be retained in the fund, subject to the provisions of subdivision
three of this section, all real estate tax payments deposited in the
fund until there shall have been retained from monies so deposited
during such month an amount equal to the total monthly debt service,
computed as of the date of any disbursement of monies from the fund, for
the first month of the next succeeding fiscal quarter; provided that
such amount shall be reduced by any amount already on deposit in the
fund which may be used to pay the monthly debt service for such month.
c. During any month of a fiscal quarter, after the retentions
required by paragraphs a and b of this subdivision have been made for
such month, the comptroller shall deposit any remaining balance of real
estate taxes received during such month, first into the TAN debt service
account to the extent required under subdivision six of this section,
and second into the board fund to be applied in accordance with proce-
dures of the board.
d. The city may at any time pay into the fund any monies required by
law to be used to pay monthly debt service and any other monies avail-
able for such purpose.
3. The board may approve, subject to agreements made with the holders
or guarantors of outstanding notes or bonds issued by or for the benefit
of the city after the effective date of this act, criteria for calculat-
ing a proportion of real estate tax receipts to be retained in the fund
in order to provide for the retention of amounts required by the
provisions of subdivision two of this section in lieu of the retention
of all initial receipts as required by such subdivision; provided, that
if the board at any time determines that retentions in the fund pursuant
to the provisions of such subdivision are or are likely to be insuffi-
cient to provide for the payment of monthly debt service when due, in
order to ensure that the amounts on deposit in the fund will be suffi-
cient to pay monthly debt service when due, the board shall require (i)
A. 10030 146
that real estate tax receipts be retained in the fund in greater amounts
or at earlier dates than the provisions of such subdivision require, or
(ii) that other revenues or cash resources of the city be paid into the
fund. The board shall consider the impact of earlier or larger
retention of real estate tax receipts on the city's seasonal borrowing
requirements when determining whether it shall require such additional
retention or that other revenues or cash resources of the city be paid
into the fund. Prior to the issuance by the city of any bonds or notes,
the board shall review any criteria then in effect which determine the
proportion of real estate tax receipts to be retained in the fund to
determine whether the proposed debt service schedule for such bonds or
notes is consistent with the monies which will be available therefor or
whether such criteria should be revised. The board shall from time to
time take such action as it determines is necessary, including disap-
proval of a proposed issue pursuant to paragraph f of subdivision one of
section seven, so that the monies in the fund shall be adequate to meet
debt service requirements.
4. Commencing on the first day of the second month of the first full
fiscal quarter subsequent to the first sale of a federally guaranteed
city obligation, the payment of monthly debt service shall be made,
first, from amounts retained in the fund. Amounts retained in the fund
shall be used only to pay debt service of the city.
5. Upon the issuance of any tax anticipation notes following the
effective date of this act, the comptroller shall establish and, so long
as any tax anticipation notes shall be outstanding, shall maintain a tax
anticipation note debt service account within the fund for the purpose
of paying the principal of tax anticipation notes.
6. The city shall determine the date on which the principal due or to
become due on an outstanding issue of tax anticipation notes shall equal
ninety percent of the available tax levy with respect to such issue, and
upon reasonable notice thereof the comptroller shall commence on such
date to pay into the TAN debt service account from collections of such
taxes and assessments, after retaining amounts required to be deposited
in the fund, amounts sufficient to pay when due, the principal of such
issue of tax anticipation notes. The payments of the principal of tax
anticipation notes shall be made, first, from amounts retained in the
TAN debt service account.
7. Upon the issuance of any revenue anticipation notes following the
effective date of this act, the comptroller shall establish and, so long
as any revenue anticipation notes shall be outstanding, shall maintain a
revenue anticipation note debt service account within the fund for the
purpose of paying the principal of revenue anticipation notes. Each
specific type of revenue in anticipation of which such notes are issued
and available for such purpose shall be deposited in such account imme-
diately upon receipt by the city. Where such revenue consists of state
aid or other revenue to be paid to the city by the comptroller, on the
date such revenue is payable to the city, the comptroller shall deposit
such revenue directly into such account in lieu of payment to the city.
All revenues deposited in the RAN debt service account shall be paid
immediately into the board fund except as otherwise provided in subdivi-
sion eight of this section.
8. The city shall determine the date on which the principal due or to
become due on an outstanding issue of revenue anticipation notes shall
equal ninety percent of the total amount of revenue against which such
notes were issued remaining to be paid to the city on or before the
fifth day prior to the maturity date of such notes and upon reasonable
A. 10030 147
notice thereof the comptroller shall commence on such date to retain in
the RAN debt service account from amounts deposited or to be deposited
therein of each specific type of revenue in anticipation of which reven-
ue such anticipation notes were issued, an amount sufficient to pay,
when due, the principal of such revenue anticipation notes. Monies
retained in such account shall vest immediately in the comptroller in
trust for the benefit of the holders of the revenue anticipation notes
in anticipation of which such notes were issued. No person having any
claim of any kind in tort, contract or otherwise against such city shall
have any right to or claim against any monies of the state appropriated
by the state and in anticipation of which such notes have been issued,
other than a claim for payment by the holders of such notes, and such
monies shall not be subject to any order, judgment, lien, execution,
attachment, setoff or counter-claim by any such person; provided, howev-
er, that nothing contained in this paragraph shall be construed to
limit, impair, impede or otherwise adversely affect in any manner the
rights or remedies of the purchasers and holders and owners of any bonds
or notes of the state or any agency, instrumentality, public benefit
corporation or political subdivision thereof, including the city of New
York, under which such purchasers and holders and owners have any right
of payment of such bonds or notes by recourse to state aid or local
assistance monies held by the state or for the payment of which bonds or
notes state aid or local assistance monies are a designated source. The
payment of the principal of revenue anticipation notes shall be made
first from amounts retained in the RAN debt service account.
9. Whenever the amount contained in the TAN debt service account or
the RAN debt service account exceeds the amount required to be retained
in such account such excess monies, including earnings on investments of
monies in the fund, shall be withdrawn from such account and paid into
the board fund.
10. Subject to agreements made with holders or guarantors of
outstanding notes or bonds issued by or for the benefit of the city
after the effective date of this act, the comptroller shall invest the
monies retained in the fund in accordance with law.
11. The limitations imposed upon the city by this section shall be in
addition to any limitations imposed upon the city OR THE CITY OF STATEN
ISLAND under the local finance law. In the event any provisions of the
local finance law shall be inconsistent with the provisions of this
section, the provisions of this section shall prevail. The requirements
of this section shall not apply to any note of the city held by the
municipal assistance corporation for the city of New York to the extent
that such corporation has evidenced its intention not to present such
notes for payment during the fiscal year in which the determination is
made provided that such notes were held by such corporation on June
thirtieth, nineteen hundred seventy-eight or were issued in exchange for
or in refunding or renewal of notes held by such corporation on such
date.
12. Notwithstanding any other provision of this section, the city AND
THE CITY OF STATEN ISLAND, IF APPLICABLE, may, at any time, subject to
approval by the comptroller, designate a trust company or bank having
its principal place of business in the state of New York and having the
powers of a trust company in the state of New York to hold all or any
part of the monies in the fund and to administer and maintain the monies
so held in accordance with the applicable provisions of this section and
any agreements made pursuant thereto.
A. 10030 148
§ 12-020. Section 11 of section 2 of chapter 868 of the laws of 1975,
constituting the New York state financial emergency act for the city of
New York, subdivisions 1 and 3 as amended by chapter 777 of the laws of
1978, is amended to read as follows:
§ 11. Prohibitions; penalties. 1. During a control period, (i) no
officer or employee of the city or of any of the covered organizations
OR TO THE EXTENT THE BOARD DEEMS NECESSARY OR DESIRABLE TO ACCOMPLISH
THE PURPOSES OF THIS ACT, THE CITY OF STATEN ISLAND shall make or
authorize an obligation or other liability in excess of the amount
available therefor under the financial plan as then in effect; (ii) no
officer or employee of the city or of any of the covered organizations
OR THE CITY OF STATEN ISLAND shall involve the city, THE CITY OF STATEN
ISLAND, IF APPLICABLE or any of the covered organizations in any
contract or other obligation or liability for the payment of money for
any purpose required to be approved by the board unless such contract,
obligation or liability has been so approved or deemed to be approved as
provided in paragraphs e and f of subdivision one of section seven and
unless such contract or obligation or liability is in compliance with
the financial plan as then in effect.
2. No officer or employee of the city or any of the covered organiza-
tions, OR, THE CITY OF STATEN ISLAND, IF APPLICABLE, shall take any
action in violation of any valid order of the board or shall fail or
refuse to take any action required by any such order or shall prepare,
present or certify any information (including any projections or esti-
mates) or report for the board or any of its agents that is false or
misleading, or, upon learning that any such information is false or
misleading, shall fail promptly to advise the board or its agents there-
of.
3. In addition to any penalty or liability under other law, any offi-
cer or employee of the city or any of the covered organizations, OR, THE
CITY OF STATEN ISLAND, IF APPLICABLE, who shall knowingly and willfully
violate subdivision one or two of this section shall be subject to
appropriate administrative discipline, including, when circumstances
warrant, suspension from duty without pay or removal from office by
order of either the governor or the mayor OR THE MAYOR OF THE CITY OF
STATEN ISLAND, IF APPLICABLE, and shall, upon conviction, be guilty of a
misdemeanor.
4. In the case of a violation of subdivision one or two of this
section by an officer or employee of the city, OR, THE CITY OF STATEN
ISLAND, IF APPLICABLE, or any of the covered organizations, the mayor OR
THE MAYOR OF THE CITY OF STATEN ISLAND, IF APPLICABLE, or the chief
executive officer of such covered organization shall immediately report
to the board all pertinent facts together with a statement of the action
taken thereon.
§ 13-001. Section 25-a of the general city law is amended by adding a
new undesignated paragraph to read as follows:
FOR THE PURPOSES OF THIS ARTICLE, A CITY WHICH IS INCORPORATED ON OR
AFTER THE FIRST OF JANUARY NEXT SUCCEEDING THE DATE ON WHICH THIS PARA-
GRAPH SHALL HAVE BECOME A LAW AND WHICH IS COMPRISED OF A GEOGRAPHICAL
AREA WHICH ON THE DATE IMMEDIATELY PRIOR TO SUCH INCORPORATION HAD BEEN
WHOLLY CONTAINED WITHIN A CITY WITH A POPULATION OF ONE MILLION OR MORE
SHALL CONTINUE TO BE TREATED AS A CITY WITH A POPULATION OF ONE MILLION
OR MORE.
§ 13-002. Section 25-w of the general city law is amended by adding a
new subdivision (g) to read as follows:
A. 10030 149
(G) FOR THE PURPOSES OF THIS ARTICLE, A CITY WHICH IS INCORPORATED ON
OR AFTER THE FIRST OF JANUARY NEXT SUCCEEDING THE DATE ON WHICH THIS
SUBDIVISION SHALL HAVE BECOME A LAW AND WHICH IS COMPRISED OF A
GEOGRAPHICAL AREA WHICH ON THE DATE IMMEDIATELY PRIOR TO SUCH INCORPO-
RATION HAD BEEN WHOLLY CONTAINED WITHIN A CITY WITH A POPULATION OF ONE
MILLION OR MORE SHALL CONTINUE TO BE TREATED AS A CITY WITH A POPULATION
OF ONE MILLION OR MORE.
§ 13-003. Section 1 of chapter 772 of the laws of 1966 relating to
imposition of a city business tax is amended by adding a new undesig-
nated paragraph to read as follows:
FOR THE PURPOSES OF THIS SECTION, A CITY WHICH IS INCORPORATED ON OR
AFTER THE FIRST OF JANUARY NEXT SUCCEEDING THE DATE ON WHICH THIS PARA-
GRAPH SHALL HAVE BECOME A LAW AND WHICH IS COMPRISED OF A GEOGRAPHICAL
AREA WHICH ON THE DATE IMMEDIATELY PRIOR TO SUCH INCORPORATION HAD BEEN
WHOLLY CONTAINED WITHIN A CITY WITH A POPULATION OF ONE MILLION OR MORE
SHALL CONTINUE TO BE TREATED AS A CITY WITH A POPULATION OF ONE MILLION
OR MORE.
§ 13-004. Section 2 of chapter 772 of the laws of 1966 relating to
imposition of a city business tax is amended by adding a new undesig-
nated paragraph to read as follows:
FOR THE PURPOSES OF THIS SECTION, A CITY WHICH IS INCORPORATED ON OR
AFTER THE FIRST OF JANUARY NEXT SUCCEEDING THE DATE ON WHICH THIS PARA-
GRAPH SHALL HAVE BECOME A LAW AND WHICH IS COMPRISED OF A GEOGRAPHICAL
AREA WHICH ON THE DATE IMMEDIATELY PRIOR TO SUCH INCORPORATION HAD BEEN
WHOLLY CONTAINED WITHIN A CITY WITH A POPULATION OF ONE MILLION OR MORE
SHALL CONTINUE TO BE TREATED AS A CITY WITH A POPULATION OF ONE MILLION
OR MORE.
§ 13-005. Section 1301 of the tax law is amended by adding a new
subsection (f) to read as follows:
(F) FOR THE PURPOSES OF THIS ARTICLE, A CITY WHICH IS INCORPORATED ON
OR AFTER THE FIRST OF JANUARY NEXT SUCCEEDING THE DATE ON WHICH THIS
SUBSECTION SHALL HAVE BECOME A LAW AND WHICH IS COMPRISED OF A GEOGRAPH-
ICAL AREA WHICH ON THE DATE IMMEDIATELY PRIOR TO SUCH INCORPORATION HAD
BEEN WHOLLY CONTAINED WITHIN A CITY WITH A POPULATION OF ONE MILLION OR
MORE SHALL CONTINUE TO BE TREATED AS A CITY WITH A POPULATION OF ONE
MILLION OR MORE.
§ 14-001. The administrative code of the city of Staten Island is
enacted to read as follows:
Title 6 - General Services and Contracting
§ 6-101 Definitions. As used in this title:
1. "Commissioner" shall mean the commissioner of the department of
general services and contracting.
2. "Department" shall mean the department of general services and
contracting.
§ 6-102 Commissioner. The head of the department shall be the commis-
sioner.
§ 6-103 Powers and duties. The commissioner shall have the power and
it shall be his or her duty to perform all the functions and operations
of the city of Staten Island relating to the construction, maintenance
and care of public buildings and facilities; the procurement of goods
and other personal property; the disposition of surplus property; the
providing to city agencies of services other than personal services; the
acquisition, disposition and management by the city of real property
other than housing; the providing of automotive, communication, energy
and data processing services including without limitation:
A. 10030 150
1. Procurement of goods, other personal property and services. With
respect to the procurement and disposal of goods and other personal
property and the procurement of services other than personal services,
the commissioner shall have the following power and duties:
(a) to purchase, inspect, store and distribute all goods, supplies,
materials, equipment and other personal property required by any city
agency, except as otherwise provided by law, or by any office of any
county wholly included in the city for which supplies, materials or
equipment are required, payment for which is made from the city treas-
ury;
(b) to establish and maintain one or more city storehouses, operating
therein a modern system of stores control to supply the estimated
current needs of the agencies for which the commissioner is authorized
to purchase. All purchases other than such purchases for stock for
estimated needs and all deliveries from such stock shall be upon justi-
fied requisitions. The commissioner shall also oversee the establish-
ment of efficient and economical systems of stores control in other city
agencies and review the operations of such storehouses to assure their
efficient and economical management;
(c) to receive all surplus and obsolete personal property not required
by any agency for which the commissioner has the power to make purchases
and all such agencies shall surrender such property to the commissioner
who shall dispose thereof pursuant to rules promulgated by him or her
governing its redistribution, exchange, transfer, sale or other disposi-
tion;
(d) to procure, supply and manage contractual services other than
personal or professional services for the use of city agencies;
(e) to promulgate rules governing the purchase, payment, storage, and
delivery of goods, supplies, materials and equipment by agencies of the
city and the disposal of surplus and obsolete materials, and to super-
vise their enforcement; and
(f) to classify all goods, supplies, materials and equipment.
2. Energy; gas and electricity. The commissioner shall have charge and
control of furnishing the city or any part thereof, by contract or
otherwise, with gas, electricity, steam, hot water or other energy
source, except such functions as are exercised by the public utility
service of the city.
3. Data processing services; information technology and telecommuni-
cations. (a) For purposes of this title "telecommunications" shall mean
transmission of writings, signals, pictures, numbers and sounds or
intelligence of all kinds by and of wire, cable, optical fiber, radio,
satellite, electromagnetic wave, microwave or other like connection
between points of origin and reception of such transmission, including
all instrumentalities, facilities, apparatus and services incidental to
such transmission.
(b) The commissioner shall provide data processing support, program-
ming, and computer systems analysis services for city agencies when
necessary or desirable, in accordance with executive orders promulgated
by the mayor.
(c) In addition, the commissioner shall have further powers and
duties:
(i) to plan, formulate, coordinate and advance information technology
and telecommunications policy for the city;
(ii) to develop, maintain and implement a long range telecommuni-
cations strategy;
A. 10030 151
(iii) to administer, subject to the approval of the council where
applicable, all franchises and revocable consents relating to telecommu-
nications including without limitation, proposing authorizing resol-
utions for telecommunications, franchises, developing and issuing
requests for proposals or other solicitations of proposals for telecom-
munications franchises, selecting telecommunications franchises, review-
ing and approving petitions for revocable consents relating to telecom-
munications, negotiating the terms of contracts or other agreements
relating to telecommunications franchises and revocable consents,
enforcing the terms and conditions of such agreements;
(iv) to develop municipal uses of cable television and coordinate
interagency uses of cable television and other telecommunications;
(v) to ensure that priority is given on at least one municipal channel
to the cable casting of the public proceedings of the council and its
committees, the city planning commission and other state and city agen-
cies;
(vi) to provide to city agencies such land-based and wireless voice,
data, video or other communication facilities, and technical assistance
or other assistance with respect to such facilities, as they may require
for the effective discharge of their responsibilities;
(vii) to participate in developing, maintaining and implementing a
long-range computer system and data communications strategy for the
city;
(viii) to assist in providing interagency coordination on matters
related to data communications activities and interfacing of computers;
(ix) to provide appropriate, reliable, cost-effective and responsive
computer and data communications services to agencies that require such
services by purchasing and maintaining hardware, software and such other
goods and services as may be necessary to effectively discharge the
powers and duties of the department;
(x) to provide assistance to agencies in meeting their data processing
and data communications objectives;
(xi) to provide agencies using or proposing to use the services of
this department with technical assistance in determining feasibility and
resource requirements;
(xii) to simplify access to shared information, reduce communication
costs and provide access to multiple computer systems by connecting
computers and terminals of various city agencies, and of other public
entities requesting such connection where such provision to such other
entities would in the judgment of the commissioner be in the city's
interests;
(xiii) to plan and provide telecommunications coordination in support
of disaster recovery;
(xiv) to ensure security for data and other information handled by
this department;
(xv) to institute procedures to assure restrictions of access to
information to the appropriate individuals, where such restrictions are
required by law; and
(xvi) to perform such other responsibilities with respect to informa-
tion technology and telecommunications matters, including responsibil-
ities delegated elsewhere by the code, as the mayor shall direct.
4. Automotive services. The commissioner shall acquire by purchase,
lease or otherwise, vehicles and other automotive equipment for the use
of city agencies; manage, maintain, store and operate a fleet of motor
vehicles; assign fleets to agencies in accordance with the direction of
the mayor and ensure the effective operation of all shops, yards,
A. 10030 152
garages, fuel depots and other facilities required for the maintenance
of fleets operated by agencies; and ensure the maintenance of records
for all city owned vehicles.
5. Right of entry. The commissioner, officers and employees of the
department may, in accordance with law, enter upon public or private
property for the purpose of making surveys, borings or other investi-
gations necessary for the exercise of powers or the performance of the
duties of the commissioner and the department. Refusal to permit such
entry shall be a misdemeanor punishable by not more than thirty days
imprisonment or by a fine of not more than $50.00, or both.
§ 6-104 Emergency communications systems of other agencies. With
respect to emergency communications systems and emergency communications
facilities administered by another agency or another municipality, the
department shall exercise its powers and duties only as the mayor shall
direct or at the request of such agency.
§ 6-105 Records and information services. Within the department there
shall be a division of records and information services which shall
include, but not be limited to, municipal archives, a municipal refer-
ence and research center and a municipal records management division.
1. The division shall be responsible for the maintenance, access to
and preservation of records of the city. In addition, the division shall
develop and promulgate standards and procedures to effectively perform
those duties.
The division shall provide appropriate information and assistance to
the mayor and to members of the council. It shall also provide, within
reasonable limits, access to the public to records, books and documents
within its care and control.
2. The division is authorized to arrange for the exchange, sale,
purchase and loan of information materials from and with legislative
research services, libraries and institutions in other municipalities,
governmental bodies and public authorities.
3. The division shall:
(a) provide for the distribution of publications of the city, where
such authority is not vested in another city agency, and issue at regu-
lar intervals, no less than quarterly, a bulletin describing its facili-
ties and resources;
(b) institute actions in replevin to recover any historical and/or
other documents properly owned by, or originating from, the county of
Richmond prior to the creation of the preceding municipality;
(c) report annually by the thirtieth of September to the mayor, and
council on the powers and duties herein-mentioned including, but not
limited to, the cost of savings effectuated by the division during the
preceding fiscal year.
§ 6-106 Departmental libraries. The commissioner shall analyze the
needs of each city agency, except the law department, with respect to
the establishment and maintenance of any library or research facility
therein, and make such recommendations as may be appropriate in the
circumstances. Any libraries or research facilities so established
shall, among any of its other duties, be responsible for the mainte-
nance, access to and preservation of records within its care and
control.
Title 7 - Legal Affairs
§ 7-102 Department; corporation counsel. 1. There shall be a law
department the head of which shall be the corporation counsel.
2. The first assistant corporation counsel, appointed by the corpo-
ration counsel, during absence, disability or the vacancy of the office
A. 10030 153
of the corporation counsel, shall assume all powers and perform all
duties of the corporation counsel and shall act as corporation counsel
until a new appointment is made.
3. The corporation counsel may empower, by written authority filed
and remaining on record in the department, any of the assistants to
perform certain duties of the corporation counsel.
§ 7-103 Powers and duties. The corporation counsel shall:
1. be attorney and counsel for the city and every agency thereof and
shall have charge of and conduct all the law business of the city and
its agencies;
2. have charge of and conduct the legal proceedings necessary in open-
ing, widening, altering and closing streets and in acquiring real estate
or in city condemnation proceedings;
3. have charge of and conduct the preparation of all leases, deeds,
contracts, bonds and all other legal papers for the city or connected
agency or officer thereof; and the corporation counsel shall approve the
form of all such deeds, bonds, contracts, leases and legal papers;
4. have the right to institute actions in law or equity to maintain,
defend and establish the rights, interests, revenues, property, privi-
leges, franchises or demands of the city or the people thereof, and to
collect any money, debts, fines or penalties or enforce the laws;
5. not be empowered to compromise, settle or adjust any rights,
claims, demands or causes of action in favor of or against the city, to
offer or confess judgment against the city or accept any offer of judg-
ment in favor of the city without the approval of the comptroller; and
6. have the authority to assign one or more assistants to any agency;
and the head of each agency may employ staff counsel to assist in legal
affairs of the agency.
§ 7-104 Legal authority. 1. All actions and proceedings for the
recovery of penalties for the violation of any law shall be brought in
the name of the city and not in that of any agency.
2. The mayor may delegate to any agency, after consultation with the
corporation counsel and head of the agency, responsibility for the
conduct of routine legal affairs of the agency.
3. The mayor may assign or transfer attorneys from the law department
of the agency to assist in such delegated functions.
4. The corporation counsel shall monitor and evaluate on a regular
basis the exercise of authority delegated.
5. The mayor, upon recommendation of the corporation counsel, may
suspend or withdraw any delegated authority whenever in his or her judg-
ment the interests of the city justify such action.
§ 7-105 City sheriff; powers and duties. 1. There shall be a city
sheriff who shall be appointed by the mayor.
2. Except as otherwise provided by law, the functions, powers and
duties formerly exercised by the sheriff of the preceding municipality
as of the date of establishment of the city of Staten Island shall
remain with the city sheriff.
§ 7-106 City clerk; powers and duties. The city clerk shall:
1. be the chief archivist of the city and shall advise the mayor and
council on those matters concerning the preservation of the city's
historical documentation;
2. act as the chief reference and research librarian for the mayor and
council and shall ensure that all significant materials pertaining to
operations of the city be preserved and readily available for use;
3. act as the chief public records officer for the mayor and council
and shall, except as otherwise provided by law, establish standards for
A. 10030 154
the proper records management in any agency or government instrumentali-
ty funded in whole or in part from local tax levy monies; and
4. have the power formerly exercised or delegate any of the functions
and duties vested in such city clerk by law of the preceding munici-
pality as it existed on the date of establishment.
Title 8 - Reserved
Title 9 - Criminal Justice
Chapter 1
Department of Corrections
§ 9-101 Definitions. As used in this title:
1. "Commissioner" shall mean the commissioner of the department of
corrections.
2. "Department" shall mean the department of corrections.
3. "Division" shall mean the division of juvenile justice.
§ 9-102 Commissioner. The head of the department shall be the commis-
sioner of corrections.
§ 9-103 Powers and duties of commissioner. 1. The commissioner shall
have:
a. charge and management of all institutions of the city (including
all hospital wards) for the care and custody of felons; misdemeanants;
all prisoners under arrest and waiting arraignment (including those who
require hospital care and/or psychiatric observation or treatment);
violators of ordinances or local laws and for the detention of any
witnesses who are unable to furnish security for their appearance in
criminal proceedings;
b. sole power and authority concerning the care, custody and control
of all court pens for the detention of prisoners while in custody of the
state of New York within the city of Staten Island, the family court of
the state of New York, the supreme court in the county of Richmond and
of all vehicles employed in the transportation of prisoners who have
been sentenced, are awaiting trial or being held for other cause;
c. charge and management of persons or any other institution of the
city placed under his or her jurisdiction;
d. all authority concerning the care and custody of felons, misdemean-
ants or violators of local laws held in institutions under his or her
jurisdiction;
e. all authority in relation to the custody and transportation of
persons held for any criminal proceedings, all prisoners under arrest
and waiting arraignment (including those requiring hospital care and/or
psychiatric treatment) in the city; and
f. supervision and responsibility for the planning and implementation
of re-training, counseling, and rehabilitative programs for felons,
misdemeanants and violators of local laws who are held in institutions
under his or her charge.
2. The commissioner shall maintain and operate buildings and struc-
tures under his or her jurisdiction and may construct additions and make
repairs to such buildings by use of the labor of persons under his or
her care and custody.
§ 9-104 Labor of prisoners. 1. Every inmate of an institution under
the authority of the commissioner shall be employed in some form of
industry, farming operations or other employment and any products there-
A. 10030 155
of shall be utilized in the institutions under the commissioner's juris-
diction.
2. Any persons held for trial may be employed in the same manner as
sentenced prisoners; however, such sentenced prisoners must give their
consent in writing.
3. Inmates and/or prisoners held for trial may be detailed by the
commissioner to perform work or service on the grounds, buildings, or on
any public improvement under the charge of any other agency.
Chapter 2
Division of Juvenile Justice
§ 9-201 The division of juvenile justice; director. 1. There shall be
within the department of corrections a division of juvenile justice.
2. The head of the division shall be the director of juvenile justice.
§ 9-202 Powers and duties of director. The director shall:
1. establish, initiate, control, maintain and operate secure and non-
secure facilities for the temporary care and maintenance of children
alleged to be or adjudicated as juvenile delinquents.
2. have the power to contract with other public and private agencies
for services in order to ensure adequate, suitable and accessible accom-
modations and that proper care will be available when required for
detention.
3. establish regulations for the operation of secure and non-secure
detention facilities and shall provide or secure the availability of
accessible and adequate non-secure detention facilities certified by
the state division of youth.
4. develop, implement and maintain systems to collect, store and
disseminate information concerning juvenile delinquency, juvenile crime
and the juvenile justice system.
5. participate with other city agencies in development, implementation
and maintenance of juvenile justice information.
Title 10 - Reserved
TITLE 11
TAXATION AND FINANCE
CHAPTER 1
DEPARTMENT OF FINANCE
§ 11-001 Definitions and applicability. Any terms in this title refer-
ring to a governmental entity of the preceding municipality shall be
deemed to refer to such entity of the preceding municipality or its
successor entity under the city of Staten Island. Any action taken in
compliance with the provisions of this title prior to the incorporation
of the city of Staten Island shall be deemed to comply with the require-
ments of this title. For the purposes of this title, the term preceding
municipality shall mean the city government for the geographical area of
the city of Staten Island which existed immediately prior to the incor-
poration of the city of Staten Island.
§ 11-101 Power of department of finance to adopt a seal. The depart-
ment of finance is authorized to adopt a seal.
§ 11-102 Finance department; records; copies when in evidence. A
copy of any paper, record, book, document or map, filed in the depart-
ment of finance, or the minutes, records or proceedings, or any portion
thereof, of any board or commission of which the commissioner of
finance, is or may become a member, when certified by the commissioner
of finance, or a deputy commissioner of finance, to be a correct copy of
A. 10030 156
the original, shall be admissible in evidence in any trial, investi-
gation, hearing or proceeding in any court, or before any commissioner,
board or tribunal, with the same force and effect as the original.
Whenever a subpoena is served upon the commissioner of finance, or any
member of a board or commission of which the commissioner of finance is
a member, or upon any officer or employee of the department of finance,
or upon any officer or employee of such boards or commissions, requiring
the production upon any trial or hearing of an original paper, document,
book, map, record, minutes or proceedings, the commissioner of finance,
in his or her discretion, may furnish a copy certified as herein
provided, unless the subpoena be accompanied by an order of the court or
other tribunal before which trial or hearing is had requiring the
production of such original.
§ 11-102.1 Authorization to require identifying numbers. a. The
commissioner of finance in the proper discharge of his or her duties in
the administration and collection of taxes, assessments, arrears or
other charges payable to the city may require any person to furnish such
identifying number as the commissioner may prescribe for securing proper
identification of such person including, but not limited to, a social
security account number or federal employer identification number.
b. Any person who fails to supply such identifying number within thir-
ty days after written demand therefor shall be liable for a civil penal-
ty of not more than one thousand dollars. Upon application in writing
and for good cause shown, the commissioner of finance may extend the
time for compliance with such written demand.
c. The civil penalty prescribed by this section shall be recovered by
the corporation counsel in an action or proceeding in any court of
competent jurisdiction. In addition, the corporation counsel may insti-
tute any other action or proceeding in any court of competent jurisdic-
tion that may be appropriate or necessary for the enforcement of the
provisions of this section.
§ 11-103 Bond of commissioner of finance. The commissioner of
finance, within ten days after receiving notice of his or her appoint-
ment and before such commissioner enters upon his or her office, shall
give a bond to the city and to the people of the state of New York in
the sum of three hundred thousand dollars, with not less than four
sufficient sureties to be approved by the comptroller, conditioned that
he or she will faithfully discharge the duties of the commissioner's
office and all trusts imposed on him or her by law in virtue of the
commissioner's office, including all duties in connection with the tax
on mortgages as prescribed by article eleven of the tax law. Such bond
shall be deemed to extend to the faithful execution of the duties of the
office until a new appointment shall be made and confirmed, and the
person so appointed enters upon the performance of the commissioner's
duties. In case of any official misconduct or default on the part of
such commissioner of finance, or his or her subordinates, an action upon
such bond may be begun and prosecuted to judgment by the city, which,
after first paying therefrom the expenses of the litigation, shall cause
the proceeds of such judgment to be distributed as shall be lawful and
equitable among the persons and objects injured or defrauded by such
official misconduct or default of the commissioner of finance or any of
his or her subordinates.
§ 11-104 Commissioner of finance to keep accounts. a. The commission-
er of finance shall keep books showing the receipts of moneys from all
sources, and designating the sources of same, and also showing the
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amounts paid from time to time on account of the several appropriations,
the forms of which shall be prescribed by the comptroller.
b. The city collector or the deputy collector in receiving moneys
payable to the city, from whatever source derived, shall not issue a
receipt to the payor for a payment made by personal, business or corpo-
rate check unless specifically requested.
§ 11-105 Agreements with financing agencies or card issuers; payment
of fines, civil penalties, taxes, fees, rates, rent, charges or other
amounts by credit card. 1. As used in this section, the following terms
shall have the following meanings:
a. "Card issuer" shall mean an issuer of a credit card, charge card or
other value transfer device.
b. "Credit card" means any credit card, credit plate, charge card,
charge plate, courtesy card, debit card or other identification card or
device issued by a person to another person which may be used to obtain
a cash advance or a loan or credit, or to purchase or lease property or
services on the credit of the person issuing the credit card or a person
who has agreed with the issuer to pay obligations arising from the use
of a credit card issued another person.
c. "Financing agency" means a person engaged, in whole or in part, in
the business of purchasing retail installment contracts, obligations or
credit agreements or indebtedness of buyers under credit agreements from
one or more retail sellers or entering into credit agreements with
retail buyers but shall not include a retail seller. The term includes
but is not limited to a bank, trust company, private banker, industrial
bank or investment company, if so engaged, but shall not include a
retail seller.
d. "Person" means an individual, partnership, corporation or any other
legal or commercial entity.
2. The city may enter into agreements with one or more financing agen-
cies or card issuers to provide for the acceptance by the city of credit
cards as an alternate means of payment of fines, civil penalties, taxes,
fees, rent, rates, charges or other amounts owed by a person to the
city. Any such agreement shall govern the terms and conditions upon
which a credit card proffered as a means of payment of a fine, civil
penalty, tax, fee, rent, rate, charge or other amount shall be accepted
or declined and the manner in and conditions upon which the financing
agency or card issuer shall pay to the city the amount of fines, civil
penalties, taxes, fees, rent, rates, charges or other amounts paid by
means of credit cards pursuant to such agreement. Any such agreement may
provide for the payment by the city to such financing agency or card
issuer of fees for the services rendered by such financing agency or
card issuer pursuant to such agreement, which fees may consist of a
discount deducted from or payable in respect of the amount of each such
fine, civil penalty, tax, fee, rent, rate, charge or other amount or
otherwise as the agreement may provide.
3. Notwithstanding any other provision of law to the contrary, any
agency or department of the city which, pursuant to an agreement entered
into under this section, accepts credit cards as a means of payment of
fines, civil penalties, taxes, fees, rent, rates, charges or other
amounts owed by a person to the city shall be authorized to charge and
collect from any person offering a credit card as a means of payment of
a fine a reasonable and uniform fee as a condition of accepting such
credit card in payment of a fine, civil penalty, tax, fee, rent, rate,
charge or other amount. Such fee shall not exceed the cost incurred by
the agency or department in connection with such credit card trans-
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action, which cost shall include any fee payable by the city to the
financing agency.
§ 11-106 Weekly reports by commissioner of finance to mayor and comp-
troller. The commissioner of finance shall report weekly in writing to
the mayor and to the comptroller all moneys received by the commission-
er, the amount of all warrants paid by him or her since the commission-
er's last report, and the amount remaining to the credit of the city.
§ 11-107 Report to comptroller. The commissioner of finance, when
required by the comptroller, shall furnish to him or her such informa-
tion as the comptroller may demand in relation to the finances of the
city, within such reasonable time as the commissioner may direct.
§ 11-108 Rules in signing warrants. No warrant shall be signed by
the comptroller or countersigned by the commissioner of finance, except
upon vouchers for the expenditures of the amount named therein, duly
prepared and audited according to the methods prescribed by the comp-
troller, and filed with the comptroller, except in the case of judg-
ments, in which case a transcript thereof shall be filed.
§ 11-109 Commissioner of finance to exhibit bank book. The commis-
sioner of finance shall exhibit his or her bank book to the comptroller
on the first Tuesday of every month and more often when required.
§ 11-110 When commissioner of finance to close accounts. The accounts
of the commissioner of finance shall be annually closed on the last day
of June.
§ 11-111 Withdrawal of moneys by heads of agencies. Notwithstanding
any provision of the charter, any city treasury or sinking fund moneys
which have been duly withdrawn from any bank or trust company upon prop-
er warrant and check to the order of the head or heads of any agency or
agencies may be redeposited by such head or heads of such agency or
agencies in a properly designated deposit bank and thereafter such rede-
posited moneys may be withdrawn upon check signed by him or her or them
without additional warrant.
§ 11-112 Authorization of subordinates to sign checks and warrants.
Notwithstanding any provision of the charter, the comptroller or commis-
sioner of finance may designate and authorize any deputies, assistant
deputies, or employees to sign, each in his or her own name and in place
of and for the comptroller or commissioner of finance, respectively, any
or all checks or warrants, including those issued against sinking fund
and trust fund bank accounts. A warrant or check so signed shall be of
the same force and effect as if signed by the comptroller or commission-
er of finance, respectively. The designation or designations of depu-
ties shall be made in writing in the manner set forth in section nine-
ty-four of the charter of the preceding municipality as it existed
January first, nineteen hundred ninety-four. The designation or desig-
nations of assistant deputies or employees shall be in writing, signed
in duplicate by the comptroller or the commissioner of finance, respec-
tively, and shall be duly filed and remain of record in the office of
the comptroller and the department of finance. The period for which
each such designation of deputies, assistant deputies and employees
shall continue in force shall be specified therein and may be terminated
by the comptroller or commissioner of finance, respectively, at any time
by filing in the same office or offices in which the designation has
been filed a written notice of such termination signed by the comp-
troller or commissioner of finance, respectively.
§ 11-113 Acceptance of facsimile signatures by banks or trust compa-
nies. Notwithstanding any provision of the charter, checks drawn upon
any bank or trust company for payment of payrolls or disbursements for
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relief, required to be signed by the head of an agency or his or her
authorized designee, may be signed by the facsimile signature or signa-
tures of the person or persons authorized to sign such checks, if the
head of such agency so authorizes by an instrument in writing signed by
the head of such agency and filed with the comptroller; and, in such
event, any bank or trust company shall, acting in good faith and without
notice of any defect or invalidity, be authorized to pay and be
protected in paying any checks bearing or purporting to bear the facsim-
ile signature or signatures of the person or persons duly authorized to
sign such checks, regardless of the person by whom or the means by which
the actual or purported facsimile signature or signatures thereon may
have been affixed thereto, if such facsimile signature or signatures
closely resemble the facsimile specimens from time to time filed with
such banks or trust companies by the head of the agency in question;
provided, however, that nothing herein contained shall release such bank
or trust company from any liability arising from any cause or fact other
than the fact that such facsimile signature is not a genuine facsimile
signature affixed with appropriate authority.
§ 11-115 City collector; appointment; bond. The mayor shall appoint
the city collector. The city collector, before entering upon the duties
of his or her office, shall enter into a bond to the city of Staten
Island to be approved by the commissioner of finance and comptroller in
the penal sum of twenty-five thousand dollars, which bond shall be
conditioned for the faithful performance of the duties of the office by
the officer giving such bond. Such bond shall be a lien on all the real
estate held by the collector executing the same, or any surety thereto,
in the city at the time of the filing thereof, unless there be named and
described in or on any such bond, real estate in such city equal in
value to the amount of such bond and owned by a surety, in which case
the bond shall be a lien on such real estate so described and upon all
the real estate of such city collector, and no other, and shall continue
to be such lien until the condition, together with all costs and charges
which may accrue by the prosecution thereof, shall be fully satisfied,
or until such lien be released, not to exceed, however, the period of
ten years after the time when the officer who has given such bond shall
have ceased to hold his or her office, unless an action thereon has been
commenced and shall then be pending.
§ 11-116 Deputies to give bond; duties. The city collector shall
take from each deputy a bond, in such penal sum and with such sureties
as may be approved by the city collector and by the comptroller and
commissioner of finance, which bond shall run to the city collector, the
city and to whom it may concern, and shall be conditioned for the faith-
ful performance of the duties of such deputy. Each bond taken in
pursuance of the provisions of this section shall be filed with the
comptroller. Each deputy collector shall have all the powers and be
subject to all the duties of the city collector in respect to the
collection and receipt of taxes, assessments, water rents and arrears.
§ 11-117 Renewal of bond. If at any time during the continuance in
office of the city collector or deputy collectors the comptroller or
commissioner of finance shall deem any surety of them to be insuffi-
cient, he or she may require the city collector or deputy collectors to
enter into a new bond to be approved in like manner as prescribed in
section 11-115 of this chapter, within such time as the comptroller may
direct, not being less than ten days after requiring such new bond to be
given. In case of the neglect or refusal of any such officer to furnish
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such bond within the time so directed, the comptroller or commissioner
of finance may declare his or her office vacant.
§ 11-118 Bureau of city collections; duties. The duties of the bureau
of city collections shall also include the collection of water rents,
charges, fines and penalties in connection with the water supply,
including arrears, sewer rents, sewer surcharges, charges, fines and
penalties in connection with the sewer system as defined in sections
24-514 and 24-523 of the code of the preceding municipality, including
arrears, interest on bonds and mortgages and revenue arising from the
sale of property belonging to or managed by the city.
§ 11-119 City collector; absence; suspension of. a. In case of
inability of the city collector to perform the duties of his or her
office by reason of sickness or absence from the city, the mayor shall
designate some suitable person to perform the duties of the city collec-
tor's office during such inability or absence, and shall, if the comp-
troller so requires, take from such person a bond, with sufficient sure-
ties, in the manner hereinafter prescribed.
b. If the city collector or any deputy collector shall on any day omit
or neglect to furnish to the commissioner of finance or to the comp-
troller, respectively, the statements and vouchers required in section
11-121 of this chapter, or to make the prescribed daily payments, it
shall be the duty of the commissioner of finance forthwith to suspend
him or her from office. In case of such suspension, the commissioner of
finance shall appoint a suitable person to perform the duties of the
officer so suspended, who shall continue to act as such officer until
the person suspended shall be restored or another person shall have been
appointed. On making such temporary appointment, the commissioner of
finance shall be required to take from the person so appointed a bond,
with two sufficient sureties, to be approved by the comptroller and
filed with the comptroller, in such penal sum as the comptroller may
deem just, conditioned for the faithful performance of the duties of the
office during the continuance of the person appointed therein; and all
the provisions of law prescribing the duties of the city collector and
deputy collectors shall apply to the person or persons so appointed.
§ 11-120 Bond of city collector to be filed. The bond given by the
city collector shall be filed and remain in the office of the comp-
troller, and true copies thereof, certified by the comptroller, shall be
filed in the office of the clerk, and shall be public records. In case
a certificate of the adjustment of the accounts of the city collector be
made, a true copy thereof, certified by the comptroller, shall be filed
in each of the offices in which a copy of the bond of the city collector
shall have been filed.
§ 11-121 City collector; daily statements and accounts. a. The city
collector or the deputy collector shall enter upon accounts, to be main-
tained in each such office for each parcel of property, the payment of
taxes, assessments, sewer rents or water rents thereon, the amount
therefor, and the date when paid. The city collector shall daily enter
into suitable books to be kept for the purpose of such accounts, such
payments and the respective parcels on account of which the same were
paid.
b. At close of office hours each day, the city collector shall render
to the commissioner of finance a statement of the sums so received, and
at the same time pay over to such commissioner of finance, the amount
received on such day. The city collector shall thereupon receive from
such commissioner of finance a voucher for the payment of such sums
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which he or she shall exhibit to the comptroller not later than the next
succeeding business day.
c. At the close of office hours each day, the city collector shall
also furnish a statement to the comptroller who shall file the same in
his or her office. Such statement shall indicate in detail such sums so
received and the respective parcels on account of which the same were
paid. The comptroller shall, on each day, immediately after receiving
such statement, compare it with a voucher furnished to him or her by the
commissioner of finance indicating the sums which have been paid on such
day to the commissioner of finance and if the aggregate amounts thereof
shall correspond, shall credit the city collector in his or her books
with such amount.
§ 11-122 Exemption from taxes granted to REMICs. An entity that is
treated for federal income tax purposes as a real estate mortgage
investment conduit, hereinafter referred to as a REMIC, as such term is
defined in section 860D of the internal revenue code, shall be exempt
from all taxation under chapters five and six of this title. A REMIC
shall not be treated as a corporation, partnership or trust for purposes
of chapter six of this title. The assets of a REMIC shall not be
included in the calculation of any tax liability under chapter six. This
provision does not exempt the holders of regular or residual interests,
as defined in section 860G of the internal revenue code, in a REMIC from
tax on or measured by such regular or residual interests, or on income
from such interests.
§ 11-123 Interest compounded daily.
In computing the amount of any interest required to be paid under
section 11-224 (except subdivision j thereof), 11-224.1, 11-264, 11-306,
11-307, 11-312, 11-313, 17-151, 19-152, 24-317, 24-512, 24-605, 26-128,
26-517.1, 27-2144 or 27-4029.1 of the code, such interest shall be
compounded daily.
§ 11-124 Conciliation conferences. a. The commissioner of finance may
establish a procedure for providing conciliation conferences for
purposes of settling contested determinations of taxes or charges or
denials of refunds or credits with respect to taxes or charges imposed
under chapter five, six, seven, eight, nine, eleven, twelve, thirteen,
fourteen, fifteen, twenty-one, twenty-two, twenty-four, twenty-five or
twenty-seven of this title, or for the purpose of settling disputes
arising from the notification of the refusal to grant, the suspension or
the revocation of a license issued pursuant to chapter thirteen of this
title. If such a procedure is established, a conciliation conference
shall be provided at the option of any taxpayer or any other person
subject to the provisions of any of such chapters. For purposes of this
subdivision, if the commissioner of finance fails to act with respect to
a refund application before the expiration of the time period after
which the taxpayer may file a petition for refund with the tax appeals
tribunal established by section one hundred sixty-eight of the charter
of the preceding municipality as it existed January first, nineteen
hundred ninety-four pursuant to subdivision (c) of section 11-529 or
subdivision three of section 11-680 of the code, such failure shall be
deemed to be the denial of a refund.
b. A request for a conciliation conference shall be made in the manner
set forth in rules promulgated by the commissioner of finance and,
notwithstanding any provision of law to the contrary, shall suspend the
running of the period of limitations for the filing of a petition with
such tax appeals tribunal under chapter five, six, seven, eight, nine,
eleven, twelve, thirteen, fourteen, fifteen, twenty-one, twenty-two,
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twenty-four, twenty-five or twenty-seven of this title until such time
as a conciliation decision is rendered by the commissioner of finance,
or until the person who requested the conciliation conference makes a
written request to discontinue or withdraw from the conciliation
proceeding.
c. Nothing contained herein shall prevent any taxpayer or any other
person who has received a notice of determination, notice of deficiency
or notice of denial of a claim for refund from filing a petition with
such tax appeals tribunal if the time for filing such a petition has not
elapsed.
d. The commissioner of finance is authorized and empowered to make,
adopt and amend rules appropriate to the carrying out of this section
and the purposes thereof.
§ 11-126 Definitions. When used in this title, the term "partnership"
shall mean an entity classified as a partnership for federal income tax
purposes, including a subchapter K limited liability company, and the
term "partner" or the term "member" when used in relation to a partner-
ship shall include a member of a subchapter K limited liability company,
unless the context requires otherwise. The term "subchapter K limited
liability company" shall mean a limited liability company classified as
a partnership for federal income tax purposes. The term "limited liabil-
ity company" means a domestic limited liability company or a foreign
limited liability company, as defined in section one hundred two of the
state limited liability company law, a limited liability investment
company formed pursuant to section five hundred seven of the banking
law, or a limited liability trust company formed pursuant to section one
hundred two-a of the banking law. Notwithstanding anything herein to
the contrary, this section shall not apply for purposes of chapter
seventeen or nineteen of this title.
§ 11-128 Payment of real property taxes by electronic funds transfer.
a. Definition. "Electronic funds transfer" shall mean any transfer of
funds, other than a transaction originated by check, draft or similar
paper instrument, which is initiated through an electronic terminal,
telephonic instrument or computer or magnetic tape so as to order,
instruct or authorize a financial institution to debit or credit an
account.
b. Authority. Notwithstanding any provision of law to the contrary,
the department of finance may accept and, as authorized by this section,
require payment of real property taxes by electronic funds transfer, and
may authorize a designee to accept such payments. The department of
finance, or its designee, may take all actions necessary to complete and
administer such transactions, including but not limited to requesting
and collecting necessary information and the debiting of specified
accounts as provided for by this section.
c. Participation. Notwithstanding any provision of law to the contra-
ry, the commissioner may require the payment of real property taxes by
electronic funds transfer for properties with annual real property tax
liability equal to or greater than three hundred thousand dollars. The
owner of any such real property, or the person or entity authorized by
such owner to pay real property taxes on such real property, shall be
required to enroll in an electronic payment program to make such
payments, including any arrears in real property taxes on such real
property, by electronic funds transfer, either by payment initiated by
the taxpayer as described in paragraph one of subdivision d of this
section or by authorizing the department of finance to debit the rele-
A. 10030 163
vant account as described in paragraph two of subdivision d of this
section.
1. Notwithstanding any other provision of this section, where a
taxpayer pays real property taxes for more than one property by a single
payment, and the total annual real property tax liability for such prop-
erties is equal to or greater than three hundred thousand dollars, the
total annual real property tax liability for such properties shall be
used to determine whether the taxes for a property must be paid by elec-
tronic funds transfer.
2. (i) Where real property taxes are paid for more than one taxpayer
by a single bill or paid by a single entity, including but not limited
to a mortgage escrow agent as defined in subparagraph (ii) of this para-
graph, if the total amount paid is equal to or greater than three
hundred thousand dollars annually, such amount shall be used to deter-
mine whether the taxpayer or entity is required to participate in an
electronic funds transfer program.
(ii) For purposes of this paragraph, the term "mortgage escrow agent"
shall include every banking organization, federal savings bank, federal
savings and loan association, federal credit union, bank, trust company,
licensed mortgage banker, savings bank, savings and loan association,
credit union, insurance corporation organized under the laws of any
state other than New York, or any other person, entity or organization
which, in the regular course of its business, requires, maintains or
services escrow accounts in connection with mortgages on real property
located in the city.
d. Electronic payment program. The owner of real property, or other
person or entity authorized by such owner to pay real property taxes on
real property for which payment must be made by electronic funds trans-
fer under this section, may choose between participating in a taxpayer
initiated payment program or an automatic debit program, as set forth in
this subdivision and described in rules promulgated by the commissioner
of finance.
1. Taxpayer initiated program. In such a program, taxpayers initiate
payment by electric funds transfer, including payment by fedwire.
2. Automatic debit program. In such a program, taxpayers authorize the
department of finance, or the department's designee as determined by the
commissioner of finance, to debit the taxpayer's account for the amounts
due.
e. Notification of participation requirements. For taxpayers or enti-
ties subject to this section, the department of finance shall mail
notice of such requirement to the property owner or other party who has
been designated to receive real property tax bills on an owner's regis-
tration card filed by such owner. Such notice shall include the date by
which the owner or other party designated by such owner to pay real
property taxes on the property must enroll in the electronic payment
program.
f. Authorization. To administer the payment of real property taxes by
electronic funds transfer by automatic debit as described in paragraph
two of subdivision d of this section, the department of finance may
require that the party responsible for the payment of real property
taxes:
1. execute an electronic funds transfer agreement with the department
of finance or its designee, on a form approved by the department of
finance. Such form may be in a format designated by the commissioner,
including an electronic format. The agreement shall require that the
taxpayer authorize the department of finance or its designee to debit
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such account on the last date by which the real property taxes may be
paid without the accrual of interest in accordance with applicable law;
and
2. furnish the department of finance or its designee with information
to enable the department of finance to complete the electronic funds
transfer transaction. Such information shall include, but not be limited
to, the name and address of the bank from which an electronic funds
transfer shall be authorized, the account number from which the payment
shall be authorized, the American Bankers Association (ABA) routing
number of the bank where the taxpayer maintains an account and the
borough, block and lot of the real property for which such payments are
authorized.
g. Timely payment. Notwithstanding any provision of law to the contra-
ry, where real property taxes are required to be made by electronic
funds transfer pursuant to subdivision c of this section, payment of
real property tax by electronic funds transfer shall be deemed timely
and not subject to interest charges if:
1. for taxpayers enrolled in a taxpayer initiated program pursuant to
paragraph one of subdivision d of this section, (i) the taxpayer proper-
ly initiates payment on the last date by which the real property taxes
may be paid without the accrual of interest in accordance with applica-
ble law; and (ii) on the last date by which the real property taxes may
be paid without the accrual of interest in accordance with applicable
law, such account contains sufficient funds to enable the successful
completion of the electronic funds transfer; or
2. for taxpayers enrolled in an automatic debit program pursuant to
paragraph two of subdivision d of this section, (i) the department of
finance or its designee has been authorized to debit the taxpayer's
account on the last date by which the real property taxes may be paid
without the accrual of interest in accordance with applicable law; (ii)
such account is properly identified; and (iii) on the date such payment
is due, such account contains sufficient funds to enable the successful
completion of the electronic funds transfer.
h. Charge on returned payments. Where the department of finance or its
designee attempts to debit a taxpayer's account pursuant to a valid
electronic funds transfer agreement and is unable to successfully
complete the electronic funds transfer due to insufficient funds or
other cause not attributable to the department of finance or its desig-
nee, in addition to any interest accruing from the late payment of taxes
in accordance with applicable law, the same fee that is imposed for a
dishonored check pursuant to section eighty-five of the general munici-
pal law shall be imposed on the affected real property, and such fee may
be collected in the manner provided in such section.
i. Hardship. If a taxpayer is unable to enroll in the electronic
payment program required by subdivision c of this section or subsequent
to enrollment becomes unable to make payments by electronic funds trans-
fer as required by this section, the taxpayer may seek a waiver by writ-
ten application to the department of finance that sets forth the reason
for such inability. Such waiver may be granted in the discretion of the
commissioner of finance, who may consider such criteria as:
1. the hardship, whether financial or practical, created by partic-
ipation in the electronic funds transfer program for the taxpayer seek-
ing the waiver;
2. the length of time for which the waiver is requested; and
3. any other factors that the commissioner may deem relevant.
A. 10030 165
The commissioner shall issue a determination, in writing, within ten
days of the department of finance's receipt of a waiver request pursuant
to this subdivision, but no waiver shall be granted with respect to the
payment of any installment of real property taxes that is due within
thirty days of the date of the request for a waiver.
j. Confidentiality. The department of finance shall assure the confi-
dentiality of information supplied by taxpayers in effecting electronic
funds transfers in accordance with applicable provisions of law. The
provisions of article six of the public officers law shall not apply to
any such information furnished by taxpayers subject to the requirements
of this section.
k. Failure to pay by electronic funds transfer. 1. With respect to any
real property as to which real property taxes are required to be paid by
electronic funds transfer under this section, but for which an install-
ment of real property taxes is not paid by electronic funds transfer and
is paid instead by any other method, including payment by check, (i)
with respect to the first installment that is paid by any other method,
including payment by check, the department of finance shall mail a warn-
ing notice to the taxpayer setting forth the requirement to make payment
by electronic funds transfer and the penalties for failure to do so; and
(ii) with respect to each and every subsequent installment that is paid
by any other method, including payment by check, the department of
finance shall impose a penalty charge in the amount of one percent of
the amount of the tax installment that was required under this section
to be paid by electronic funds transfer.
2. Any penalty charge imposed under this subdivision shall be a lien
against the real property for which the taxpayer failed to make a
payment in the manner required by this section, and shall accrue inter-
est at the same rate as is imposed on a delinquent tax on real property,
to be calculated to the date of payment from the date of entry. Such
lien shall be a tax lien within the meaning of sections 11-319 and
11-401 and may be sold, enforced or foreclosed in the manner provided in
chapters three and four of this title.
l. Rules. The commissioner may promulgate rules necessary to implement
this section.
CHAPTER 2
REAL PROPERTY ASSESSMENT, TAXATION AND CHARGES
SUBCHAPTER 1
ASSESSMENT ON REAL PROPERTY
§ 11-201 Assessments on real property; general powers of finance
department. The commissioner of finance shall be charged generally with
the duty and responsibility of assessing all real property subject to
taxation within the city.
§ 11-202 Maps and records; surveyor. The commissioner of finance
shall appoint a surveyor who shall make the necessary surveys and
corrections of the block or ward maps, and also make all new tax maps
which may be required.
§ 11-203 Maps and records; tax maps. a. As used in the charter of
the city of Staten Island and in this code, the term "tax maps" shall
mean and include the block map of taxes and assessments to the extent
that the territory within the city of Staten Island is or shall be
embraced in such map, such ward or land maps as embrace the remainder of
such city, and also such maps as may be prepared under and pursuant to
subdivision d of this section.
A. 10030 166
b. Each separately assessed parcel shall be indicated on the tax maps
by a parcel number or by an identification number. A separate identifi-
cation number shall be entered upon the tax maps in such manner as
clearly to indicate each separately assessed parcel of real property not
indicated by parcel numbering. Real property indicated by a single
identification number shall be deemed to be a separately assessed
parcel.
In the case of a newly created parcel with any building thereon, no
tax lot number or identification number shall be assigned to such parcel
unless the commissioner of the department of buildings has certified
that the newly created parcel complies with all applicable zoning laws.
c. Parcel numbers shall designate each parcel by the use of three or
more numbers, of which one shall be a section or ward number, another a
block, district or plat number, and another a lot number. The depart-
ment of finance may from time to time change the form of the section and
blocks, and also the numbers thereof, on the tax maps filed in its
office whenever such change of form has been caused pursuant to section
one hundred ninety-nine of the charter of the preceding municipality as
it existed on the first of January in the year next succeeding the
effective date of this section and there shall thereafter be delineated
and entered upon such maps such new additional sections and blocks and
their numbers as necessity may require. Such administration may from
time to time change the form of the lots or parcels comprised within any
block, and also the numbers thereof, and cause to be shown on such maps
the separate lots or parcels of land contained in any new block added
thereto and also the lot numbers thereof, according to the general plan
employed in the making of such maps.
d. Each separately assessed parcel indicated by an identification
number shall be shown by a description, or by inscription of such number
on the block map of taxes and assessments, or by other map and
description. Such numbers may be altered in the same manner as provided
in subdivision c of this section for the alteration of parcel numbers.
e. New tax maps shall be certified by the department of finance and
filed in its main office. All changes and alterations made in the tax
maps shall be transmitted within thirty days after such change or alter-
ation to such office.
§ 11-204 Tax maps; block references; alterations and corrections. The
word "block", as used in this section designates a plot or parcel of
land such as is commonly so designated in the city, wholly embraced
within the continuous lines of streets, or streets and waterfront taken
together where water forms one of the boundaries of a block, and such
other parcels of land or land under water as may be indicated by the
department of finance upon such tax maps by block numbers as constitut-
ing blocks.
§ 11-205 Maps and records; public inspection; evidential value. a. The
books, maps, assessment-rolls, files and records of the department of
finance shall be kept in such of the offices of the department of
finance as may be most convenient to the taxpayers of the city and suit-
able to the proper discharge of the business of the department of
finance. They shall be public records and shall at all reasonable times
be open to public inspection.
b. Copies of all such records and transcripts thereof, certified by
the commissioner of finance or an assessor or by an officer or employee
of the department of finance designated by the commissioner of finance,
and under the seal of the department of finance, shall be admissible in
evidence in all courts and places in the same manner and for the same
A. 10030 167
purposes as books, papers or documents similarly authenticated by the
clerk of a county.
§ 11-206 Power of the commissioner of finance to correct errors. The
commissioner of finance may correct any assessment or tax which is erro-
neous due to a clerical error or to an error of description contained in
the several books of annual record of assessed valuations, or in the
assessments-rolls. If the taxes computed on such erroneous assessment
have been paid, the commissioner of finance is authorized to refund or
credit the difference between the taxes computed on the erroneous and
corrected assessments.
§ 11-207 Duties of assessors in assessing property. a. In performing
their assessment duties, the assessors shall personally examine each
parcel of taxable real estate during at least every third assessment
cycle, and shall personally examine each parcel of real estate that is
not taxable during at least every fifth assessment cycle, as measured
from the last preceding assessment cycle during which such parcel was
personally examined, provided, however, the assessors shall revalue,
reassess or update the assessment of each parcel of taxable or nontaxa-
ble real estate during each assessment cycle, irrespective of whether
such parcel was personally examined during each assessment cycle.
b. The persons having charge of the assessment office shall furnish to
the commissioner of finance, under oath, a detailed statement of all
taxable real estate in the city. Such statement shall contain the
street, the section or ward, the block and lot and map or identification
numbers of such real estate embraced within such city; the sum for
which, in their judgment, each separately assessed parcel of real estate
would sell under ordinary circumstances if it were wholly unimproved
and, separately stated, the sum for which the same parcel would sell
under ordinary circumstances with the improvements, if any, thereon,
such sums to be determined with regard to the limitations contained in
the state real property tax law. Such statement shall include such
other information as the commissioner of finance may, from time to time,
require.
§ 11-208 Special right of entry; certificate of the commissioner of
finance. A right of entry upon real property and into buildings and
structures at all reasonable times to ascertain the character of the
property shall not be allowed to any person acting in behalf of the
department of finance, other than the officials mentioned in sections
one hundred fifty-six and one thousand five hundred twenty-one of the
charter of the preceding municipality as it existed on the first of
January in the year next succeeding the effective date of this section,
unless a certificate therefor, executed in writing and signed by the
commissioner of finance, is presented by such person to the owner,
lessee, or occupant of the premises or his or her agent before entry
thereon is made.
§ 11-208.1 Income and expense statements. a. Where real property is
income-producing property, the owner shall be required to submit annual-
ly to the department not later than the first of September a statement
of all income derived from and all expenses attributable to the opera-
tion of such property as follows:
(1) Where the owner's books and records reflecting the operation of
the property are maintained on a calendar year basis, the statement
shall be for the calendar year preceding the date the statement shall be
filed.
(2) Where the owner's books and records reflecting the operation of
the property are maintained on a fiscal year basis for federal income
A. 10030 168
tax purposes, the statement shall be for the last fiscal year concluded
as of the first of August preceding the date the statement shall be
filed.
(3) Notwithstanding the provisions of paragraphs one and two of this
subdivision, where the owner of the property has not operated the prop-
erty and is without knowledge of the income and expenses of the opera-
tion of the property for a consecutive twelve month period concluded as
of the first of August preceding the date of the statement shall be
filed, then the statement shall be for the period of ownership.
(4) The commissioner may for good cause shown extend the time for
filing an income and expense statement by a period not to exceed thirty
days.
b. Such statements shall contain the following declaration: "I certify
that all information contained in this statement is true and correct to
the best of my knowledge and belief. I understand that the willful
making of any false statement of material fact herein will subject me to
the provisions of law relevant to the making and filing of false instru-
ments and will render this statement null and void."
c. The form on which such statement shall be submitted shall be
prepared by the commissioner and copies of such form shall be made
available at the offices of the department in the county in which the
property is located. The commissioner may, by rule, require such state-
ment to be submitted electronically in such form and such manner as the
commissioner may determine. For good cause, the commissioner may waive
any rule requiring electronic filing and may permit a statement to be
filed in such other manner as the commissioner may designate.
d. (1) In the event that an owner of income-producing property fails
to file an income and expense statement within the time prescribed in
subdivision a of this section (determined with regard to any extension
of time for filing), such owner shall be subject to a penalty in an
amount not to exceed three percent of the assessed value of such
income-producing property determined for the current fiscal year in
accordance with section fifteen hundred six of the charter of the
preceding municipality as it existed on the first of January in the year
next succeeding the effective date of this section provided, however,
that if such statement is not filed by the thirty-first of December, the
penalty shall be in an amount not to exceed four percent of such
assessed value. If, in the year immediately following the year in which
an owner fails to file by the thirty-first of December, the owner again
fails to file an income and expense statement within the time prescribed
in subdivision a of this section (determined with regard to any exten-
sion of time for filing), such owner shall be subject to a penalty in an
amount not to exceed five percent of the assessed value of such property
determined for the current fiscal year. Such owner shall also be subject
to a penalty of up to five percent of such assessed value in any year
immediately succeeding a year in which a penalty of up to five percent
could have been imposed, if in such succeeding year the owner fails to
file an income and expense statement within the time prescribed in
subdivision a of this section (determined with regard to any extension
of time for filing). The penalties prescribed in this paragraph shall be
determined by the commissioner after notice and an opportunity to be
heard.
(2) The tax commission shall deny a hearing on any objection to the
assessment of property for which an income and expense statement is
required and has not been timely filed.
A. 10030 169
(3) Where an income and expense statement required under the
provisions of this section has not been timely filed, the commissioner
may compel by subpoena the production of the books and records of the
owner relevant to the income and expenses of the property, and may also
make application to any court of competent jurisdiction for an order
compelling the owner to furnish the required income and expense state-
ment.
e. As used in this section, the term "income-producing property" means
property owned for the purpose of securing an income from the property
itself, but shall not include property with an assessed value of forty
thousand dollars or less, or residential property containing ten or
fewer dwelling units or property classified in class one or two as
defined in article eighteen of the real property tax law containing six
or fewer dwelling units and one retail store.
f. Except in accordance with proper judicial order or as otherwise
provided by law, it shall be unlawful for the commissioner, any officer
or employee of the department, the president or a commissioner or
employee of the tax commission, any person engaged or retained by the
department or the tax commission on an independent contract basis, or
any person, who, pursuant to this section, is permitted to inspect any
income and expense statement or to whom a copy, an abstract or a portion
of any such statement is furnished, to divulge or make known in any
manner except as provided in this subdivision, the amount of income
and/or expense or any particulars set forth or disclosed in any such
statement required under this section. The commissioner, the president
of the tax commission, or any commissioner or officer or employee of the
department or the tax commission charged with the custody of such state-
ments shall not be required to produce any income and expense statement
or evidence of anything contained in them in any action or proceeding in
any court, except on behalf of the department or the tax commission.
Nothing herein shall be construed to prohibit the delivery to an owner
or his or her duly authorized representative of a certified copy of any
statement filed by such owner pursuant to this section or to prohibit
the publication of statistics so classified as to prevent the identifi-
cation of particular statements and the items thereof, or making known
aggregate income and expense information disclosed with respect to prop-
erty classified as class four as defined in article eighteen of the real
property tax law without identifying information about individual leas-
es, or making known a range as determined by the commissioner within
which the income and expenses of a property classified as class two
falls, or the inspection by the legal representatives of the department
or of the tax commission of the statement of any owner who shall bring
an action to correct the assessment. Any violation of the provisions of
this subdivision shall be punished by a fine not exceeding one thousand
dollars or by imprisonment not exceeding one year, or both, at the
discretion of the court, and if the offender be an officer or employee
of the department or the tax commission, the offender shall be dismissed
from office.
g. The commissioner shall be authorized to promulgate rules and regu-
lations necessary to effectuate the purposes of this section.
h. Subdivision f of this section shall be deemed a state statute for
purposes of paragraph (a) of subdivision two of section eighty-seven of
the public officers law.
§ 11-209 Taxable status of building in course of construction. a. A
building in the course of construction, commenced since the preceding
fifth day of January and not ready for occupancy on the fifth day of
A. 10030 170
January following, shall not be assessed unless it shall be ready for
occupancy or a part thereof shall be occupied prior to the fifteenth of
April.
b. (1) A commercial building in the course of construction, commenced
since the fifth day of January one year preceding the taxable status
date and not ready for occupancy or partially occupied on the taxable
status date, shall not be assessed unless it shall be ready for occupan-
cy or a part thereof shall be occupied prior to the fifteenth day of
April following the taxable status date.
(2) A commercial building in the course of construction, commenced
since the fifth day of January two years preceding the taxable status
date and not ready for occupancy or partially occupied on the taxable
status date, shall not be assessed unless it shall be ready for occupan-
cy or a part thereof shall be occupied prior to the fifteenth day of
April following the taxable status date.
(3) A commercial building in the course of construction, commenced
since the fifth day of January three years preceding the taxable status
date and not ready for occupancy or partially occupied on the taxable
status date, shall not be assessed unless it shall be ready for occupan-
cy or a part thereof shall be occupied prior to the fifteenth day of
April following the taxable status date.
c. For purposes of this section, a "commercial building" shall mean a
building that is intended to be used, and upon completion is used,
exclusively for buying, selling or otherwise providing goods or
services, or for other lawful business, commercial or manufacturing
activities, excluding hotel services, except that a commercial building
may contain a residential component other than a hotel, provided (i)
that such residential component is receiving or has applied for and is
eligible to receive a partial exemption from real property taxes pursu-
ant to section four hundred twenty-one-a of the real property tax law,
or (ii) that such residential component in its entirety, both land and
building, is receiving or has applied for and is eligible to receive a
full exemption from real property taxes, provided, however, a "commer-
cial building" shall not include any building that is constructed on
block 1049, lot 29 as shown on the tax map of the city of New York for
the borough of Manhattan as such map was in effect for the assessment
roll published in calendar year two thousand.
d. Subdivision b of this section shall not apply to a tax lot that
constitutes a part of a building unless the building viewed as a whole
is a commercial building as defined in subdivision c of this section.
e. Any building that receives the benefit conferred pursuant to subdi-
vision b of this section that is subsequently determined not to have
been a commercial building as defined in subdivision c of this section
for any year in which it received such benefit shall have its assessment
corrected for any such year. Taxes shall be imposed in the amount that
would have applied had the corrected taxable assessed value appeared on
the final assessment roll.
§ 11-210 Books of annual record of assessed valuation of real estate
indicated by parcel numbers; form and contents. a. There shall be kept
in the office of the department of finance, books of the annual record
of the assessed valuation of real estate to be called "the annual record
of the assessed valuation of real estate indicated by parcel numbers in
the Staten Island", in which shall be entered in detail the assessed
valuation of each separately assessed parcel indicated by a parcel
number within the limits of Staten Island.
A. 10030 171
b. The assessed valuation of each such parcel shall be set down in
such books in two columns. In the first column shall be stated, oppo-
site each such parcel, the sum for which such parcel would sell under
ordinary circumstances if wholly unimproved; and in the second column,
the sum for which such parcel would sell under ordinary circumstances
with the improvements, if any thereon.
c. Such books shall be prepared in such manner that the assessed valu-
ations entered therein shall be under sections and block headings as may
be most convenient for use in connection with the tax maps described in
section 11-203 of this chapter.
§ 11-211 Books of annual record of assessed valuation of real estate
indicated by identification numbers. a. The assessed valuation of all
taxable real property indicated by identification numbers shall be
entered in the office of the department of finance.
b. The assessors in the city shall furnish to the commissioner of
finance at the office of the department of finance, a detailed statement
under oath of the assessable real property indicated by an identifica-
tion number in such city.
c. There shall be kept in the office of the department of finance,
books of the annual record of the assessed valuation of real estate to
be known as "the annual record of the assessed valuation of real estate
indicated by identification numbers", in which shall be entered the
assessed valuations of the real property mentioned in this section.
§ 11-212 Power of the commissioner of finance to equalize assessments
before opening books. a. Before opening the several books of annual
record of assessed valuation for public inspection, the commissioner of
finance shall fix the valuations of property for the purpose of taxation
throughout the city at such sums as will, in the commissioner's judg-
ment, establish a just and equal relation between the valuations of
property throughout the entire city.
b. To this end the assessors are required to transmit to the commis-
sioner of finance in each year a report of the assessed valuation of
real property at such time prior to the fifteenth of January as such
commissioner may prescribe.
§ 11-213 Errors in annual records or assessment-rolls. The omission
from the several books of annual record of assessed valuations or from
the assessment-rolls in respect to the entry therein of the name of the
rightful owner or owners of real estate, whether individuals or corpo-
rations, shall not invalidate any tax or assessment. In such case,
however, no tax shall be collected except from the real estate so
assessed.
§ 11-214 Procedure on apportionment of assessment. a. The commissioner
of finance may apportion any assessment in such manner as he or she
shall deem just and equitable, and forthwith cause such assessment to be
cancelled and new assessments, equal in the aggregate to the cancelled
assessment, to be made on the proper books and rolls. Within five days
thereafter the commissioner of finance shall cause written notice of the
new assessments to be mailed to the owners of record of the real estate
so assessed at their last known residence or business address, and an
affidavit of the mailing of such notice to be filed in the office of the
department of finance.
b. When such notice is mailed after the first of February such owners
may apply for correction of such assessments within twenty days after
the mailing of such notice with the same force and effect as if such
application were made on or before the first of March in such year.
A. 10030 172
§ 11-215 Entry of corrections made by tax commission. Upon receiving
notice of a correction of an assessment made by the tax commission, the
commissioner of finance shall cause the amount of the assessment as
corrected to be entered upon the proper books of annual record and the
assessment-rolls for the year for which such correction is made.
§ 11-216 Reduction in assessments; publication. a. There shall be
published annually in the City Record a list of all reductions in real
property assessments granted by the tax commission identifying the name
of the property owner, the address and the amount of reduction.
b. No reduction shall be granted for an income-producing property
unless there is submitted to the tax commission a statement of income
and expenses in the form prescribed by the tax commission and which
shall be, in the case of property valued at one million dollars or more
certified by a certified public accountant. The commissioner granting
such reduction in assessment shall state in a short memorandum the basis
upon which the reduction is granted.
c. In all cases where the reduction in assessment for the current year
is for fifty thousand dollars or more, the concurrence of the president
of the tax commission shall be required.
§ 11-217 Assessment-rolls; form and contents. Assessment-rolls shall
be so arranged with respect to number of columns and shall contain such
entries as the commissioner of finance shall prescribe, sufficient to
identify the property assessed and to show its total assessed valuation.
Real estate shall be described therein by the numbers by which such
property is designated on the tax maps and in the several books of the
annual record of the assessed valuation of real estate, and such numbers
shall import into the assessment-rolls any necessary identifying
description shown by the tax maps.
§ 11-218 Assessment-rolls; delivery to council or city clerk. a. The
council shall meet at noon, on the day of delivery of the rolls, other
than a Saturday, Sunday, or legal holiday, at the city hall or usual
place of meeting for the purpose of receiving the assessment-rolls and
performing such other duties in relation thereto as are prescribed by
law.
b. If the council fails to meet as herein prescribed, the rolls shall
be delivered to the city clerk with the same effect as if delivered to
the council.
§ 11-219 Books of annual record; delivery for publication. Within two
weeks after the delivery of the assessment-rolls to the council, the
commissioner of finance shall furnish to the director of the City Record
a copy of the several books of the annual record of the assessed valu-
ation of real estate, omitting, however, the two columns headed respec-
tively "size of house" and "houses on lot."
§ 11-220 Council; date of meeting to fix tax rate. The council shall
meet on a day other than a Saturday, Sunday or legal holiday, to fix the
annual tax rate.
§ 11-221 Extension of tax on assessment-rolls or upon assessment-roll
cards. The respective sums to be paid as taxes on the valuation of real
property, may be set down in the assessment-rolls, or upon assessment-
roll cards.
§ 11-222 Tax account of the commissioner of finance. Upon notification
from the public advocate of the amount of taxes mentioned in such
assessment-rolls and tax warrants, the comptroller shall cause the prop-
er sum to be charged to the commissioner of finance for collection.
§ 11-223 Apportionment of taxes. a. If a sum of money in gross has
been or shall be taxed upon any lands or premises, any person or persons
A. 10030 173
claiming any dividend or undivided part thereof may pay such part of
such sum so taxed and of any interest and charges due or charged there-
on, as the commissioner of finance may deem to be just and equitable.
b. The commissioner of finance shall apportion the assessed valuation
of such lands or premises.
c. The remainder of the sum of money so taxed and the interest and
charges shall be a lien upon the residue of the land and premises only,
and the tax lien upon such residue may be sold to satisfy such tax,
interest or charges thereon, in the same manner as though the residue of
said tax had been imposed only upon such residue of such lands or prem-
ises.
§ 11-224 Interest on unpaid taxes. a. If any tax on real estate which
shall have become due and payable prior to January first, nineteen
hundred thirty-four, is unpaid in whole or in part, the commissioner of
finance shall charge, receive and collect interest upon the amount of
such tax or such part thereof, to be calculated to the date of payment
at the rate of seven per centum per annum from the date when such tax or
such part thereof became due and payable to January first, nineteen
hundred thirty-four, at the rate of ten per centum per annum from Janu-
ary first, nineteen hundred thirty-four to May first, nineteen hundred
thirty-seven, or at the rate of seven per centum per annum for such
period if the comptroller and the commissioner of finance, in their
discretion, both determine that the payment of any tax arrears at such
reduced rate of interest may operate to save the property upon which
such taxes are in arrears from foreclosure or encourage its development
or is otherwise in the public interest, at the rate of seven per centum
per annum from May first, nineteen hundred thirty-seven to August first,
nineteen hundred sixty-nine, and from August first, nineteen hundred
sixty-nine to December thirty-first, nineteen hundred seventy-six, at
the rate of seven per centum per annum if the annual tax on a parcel is
two thousand dollars or less, and at the rate of one per centum per
month if the annual tax on a parcel is more than two thousand dollars
or, irrespective of the annual tax, if a parcel consists of vacant or
unimproved land, and from January first, nineteen hundred seventy-seven
at the rate of seven per centum per annum if the annual tax on a parcel
is two thousand dollars or less, and at the rate of fifteen per centum
per annum if the annual tax on a parcel is more than two thousand
dollars or, irrespective of the annual tax, if a parcel consists of
vacant or unimproved land.
b. If any tax on real estate which shall have become due and payable
after January first, nineteen hundred thirty-four and prior to April
first, nineteen hundred thirty-seven, is unpaid in whole or in part, the
commissioner of finance shall charge, receive and collect interest upon
the amount of such tax or such part thereof, to be calculated to the
date of payment at the rate of ten per centum per annum from the date on
which such tax or such part thereof became due and payable to May first,
nineteen hundred thirty-seven, or at the rate of seven per centum per
annum for such period if the comptroller and the commissioner of
finance, in their discretion, both determine that the payment of any tax
arrears at such reduced rate of interest may operate to save the proper-
ty upon which such taxes are in arrears from foreclosure or encourage
its development or is otherwise in the public interest, at the rate of
seven per centum per annum from May first, nineteen hundred thirty-seven
to August first, nineteen hundred sixty-nine, from August first, nine-
teen hundred sixty-nine to December thirty-first, nineteen hundred
seventy-six, at the rate of seven per centum per annum if the annual tax
A. 10030 174
on a parcel is two thousand dollars or less, and at the rate of one per
centum per month if the annual tax on a parcel is more than two thousand
dollars or, irrespective of the annual tax, if a parcel consists of
vacant or unimproved land, and from January first, nineteen hundred
seventy-seven, at the rate of seven per centum per annum if the annual
tax on a parcel is two thousand dollars or less, and at the rate of
fifteen per centum per annum if the annual tax on a parcel is more than
two thousand dollars or, irrespective of the annual tax, if a parcel
consists of vacant or unimproved land.
c. If any tax on real estate which shall have become due and payable
on or after April first, nineteen hundred thirty-seven and prior to
August first, nineteen hundred sixty-nine is unpaid in whole or in part,
the commissioner of finance shall charge, receive and collect interest
upon the amount of such tax or such part thereof, to be calculated to
the date of payment at the rate of seven per centum per annum from the
day on which such tax or such part thereof became due and payable to
August first, nineteen hundred sixty-nine, from August first, nineteen
hundred sixty-nine to December thirty-first, nineteen hundred seventy-
six, at the rate of seven per centum per annum if the annual tax on a
parcel is two thousand dollars or less, and at the rate of one per
centum per month if the annual tax on a parcel is more than two thousand
dollars or, irrespective of the annual tax, if a parcel consists of
vacant or unimproved land, and from January first, nineteen hundred
seventy-seven at the rate of seven per centum per annum if the annual
tax on a parcel is two thousand dollars or less, and at the rate of
fifteen per centum per annum if the annual tax on a parcel is more than
two thousand dollars or, irrespective of the annual tax, if a parcel
consists of vacant or unimproved land.
d. If any tax on real estate which shall have become due and payable
on or after August first, nineteen hundred sixty-nine and prior to
December thirty-first, nineteen hundred seventy-six, is unpaid in whole
or in part, the commissioner of finance shall charge, receive and
collect interest upon the amount of such tax or such part thereof, to be
calculated from the date on which such tax or such part thereof became
due and payable to December thirty-first, nineteen hundred seventy-six,
at the rate of seven per centum per annum if the annual tax on a parcel
is two thousand dollars or less, and at the rate of one per centum per
month if the annual tax on a parcel is more than two thousand dollars
or, irrespective of the annual tax, if a parcel consists of vacant or
unimproved land, and from January first, nineteen hundred seventy-seven
at the rate of seven per centum per annum if the annual tax on a parcel
is two thousand dollars or less, and at the rate of fifteen per centum
per annum if the annual tax on a parcel is more than two thousand
dollars or, irrespective of the annual tax, if a parcel consists of
vacant or unimproved land.
e. If any tax on real estate which shall become due and payable at any
time on or after January first, nineteen hundred seventy-seven, shall
remain unpaid in whole or in part on the fifteenth day following the
date on which the same shall become due and payable, the commissioner of
finance shall charge, receive and collect interest upon the amount of
such tax or such part thereof remaining unpaid on that date, to be
calculated from the day on which such tax or such part thereof became
due and payable to the date of payment at the rate of seven per centum
per annum if the annual tax on a parcel is two thousand dollars or less,
and at the rate of fifteen per centum per annum if the annual tax on a
A. 10030 175
parcel is more than two thousand dollars or, irrespective of the annual
tax, if a parcel consists of vacant or unimproved land.
f. If any tax on real estate which shall become due and payable at any
time on or after July first, nineteen hundred seventy-nine, shall remain
unpaid in whole or in part on the fifteenth day following the date on
which the same shall become due and payable, or if any tax on real
estate which became due and payable prior to July first, nineteen
hundred seventy-nine shall remain unpaid on that date, the commissioner
of finance shall charge, receive and collect interest upon the amount of
such tax or such part thereof remaining unpaid, to be calculated, in the
case of any tax which shall become due and payable on or after July
first, nineteen hundred seventy-nine, from the day on which such tax or
such part thereof became due and payable, and in the case of any tax
which became due and payable prior to July first, nineteen hundred
seventy-nine, from July first, nineteen hundred seventy-nine, to the
date of payment at the rate of seven per centum per annum if the annual
tax on a parcel is two thousand seven hundred fifty dollars or less, and
at the rate of fifteen per centum per annum if the annual tax on a
parcel is more than two thousand seven hundred fifty dollars or, irre-
spective of the annual tax, if a parcel consists of vacant or unimproved
land. Any interest accrued prior to July first, nineteen hundred seven-
ty-nine, pursuant to subdivisions a through e of this section shall be
unaffected by the provisions of this subdivision.
g. No later than the twenty-fifth day of May of each year, the banking
commission shall transmit a written recommendation to the council of a
proposed interest rate to be charged for nonpayment of taxes on real
estate in those cases where the annual tax on a parcel is more than two
thousand seven hundred fifty dollars or where, irrespective of the annu-
al tax, a parcel consists of vacant or unimproved land. In making such
recommendations the commission shall consider the prevailing interest
rates charged for commercial loans extended to prime borrowers by
commercial banks operating in the city and shall propose a rate of at
least six per centum per annum greater than such rates. The council may
by resolution adopt an interest rate to be applicable to the aforemen-
tioned parcels and may specify in such resolution the date on which such
interest rate is to take effect.
h. Notwithstanding anything to the contrary contained in the recommen-
dation transmitted by the banking commission to the council relative to
the proposed rate of interest to be charged during the fiscal year of
the city commencing July first, nineteen hundred seventy-nine in the
case of nonpayment of real estate taxes, or contained in the resolution
adopted by the council in accordance with such recommendation, the coun-
cil hereby sets the interest rate to be charged during the fiscal year
of the city commencing July first, nineteen hundred seventy-nine for
nonpayment of real estate taxes at eighteen per centum per annum where
the annual tax on a parcel is more than two thousand seven hundred fifty
dollars or where the parcel consists of vacant or unimproved land.
i. The interest mentioned in subdivisions a through h of this section
shall be paid over and accounted for from time to time by such commis-
sioner of finance as a part of the tax collected by him or her.
j. When an installment agreement has been entered into pursuant to any
of the provisions of chapter four of this title, during the period
beginning on the date this subdivision takes effect and ending April
thirtieth, nineteen hundred eighty-two, the commissioner of finance
shall, notwithstanding any higher rate of interest prescribed pursuant
to applicable law, and unless a lower rate of interest is applicable to
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a parcel covered by such an agreement, charge, collect and receive
interest on the arrears due and payable under such agreement, to be
calculated at the rate of ten percent per annum from May first, nineteen
hundred eighty-two to the date of payment of each installment. Any
interest accrued or accruing prior to May first, nineteen hundred eight-
y-two shall not be affected by the provisions of this subdivision but
shall be charged, collected and received in the manner and at the rates
prescribed pursuant to applicable law. Such ten percent rate of inter-
est shall be applicable only if, as of May first, nineteen hundred
eighty-two, (i) there has been no default in such agreement, and (ii)
all current taxes, assessments or other legal charges are paid as they
become due or within the period of grace provided by law. Where an
installment agreement has been entered into prior to May fifth, nineteen
hundred eighty-two pursuant to the provisions of either paragraph three
of subdivision a of section 11-413 of chapter four of this title prior
to March fourteenth, nineteen hundred seventy-nine or of subdivision a
of section 11-405 or subdivision h of section 11-409 of chapter four of
this title and said agreement is current as to both installment payments
and current taxes, assessments and other legal charges, the commissioner
of finance, on application of the party who entered into such agreement,
may cancel said agreement and enter into a new agreement containing the
terms provided on May fifth, nineteen hundred eighty-two. If any such
prior agreement is not cancelled as herein provided, any installments
due and payable under such agreement on or after May first, nineteen
hundred eighty-two shall be subject to interest at the rate and under
the conditions set forth above. In the event of any subsequent default
or failure to make timely payment of any installment payment or current
tax, assessment or other legal charge, the ten percent rate of interest
specified in this subdivision shall thereupon cease to be applicable and
the commissioner of finance shall thereafter charge, collect and receive
interest in the manner and at the rates prescribed pursuant to applica-
ble law.
k. 1. Notwithstanding any other provision of this section to the
contrary, but subject to the exception contained in paragraph two of
this subdivision, in the case of an installment of tax on real property
described in paragraph b of subdivision four of section fifteen hundred
nineteen of the city charter of the preceding municipality as it existed
on the first of January in the year next succeeding the effective date
of this section, interest shall be charged, received and collected at
the rate established pursuant to this section if such installment shall
remain unpaid in whole or in part on the date on which it shall become
due and payable.
2. If the tax rate for any fiscal year of the city has not been set by
the fifteenth of June preceding the start of such fiscal year, interest
shall not be charged, received and collected with respect to the first
installment of tax which is due and payable on the first of July in such
fiscal year if such installment is paid on or before the extended
payment date. For this purpose, the term "extended payment date" means
the date which falls the same number of days after the first of July in
such fiscal year as the number of days the date such tax rate is set
falls after such fifteenth of June.
l. No later than the fifth day following the effective date of this
subdivision and no later than May twenty-fifth of each succeeding year,
the banking commission shall transmit a written recommendation to the
council of proposed interest rates to be charged for nonpayment of taxes
on real property in those cases in which the annual tax on a parcel,
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other than a parcel which consists of vacant or unimproved land, is not
more than two thousand seven hundred fifty dollars. In making such
recommendations, the banking commission shall consider the prevailing
interest rates charged for commercial loans extended to prime borrowers
by commercial banks operating in the city. In the case of any such
parcel with respect to which the real property taxes are held in escrow
and paid to the commissioner of finance by a "mortgage escrow agent," as
that term is defined in section fifteen hundred nineteen of the city
charter of the preceding municipality as it existed on the first of
January in the year next succeeding the effective date of this section,
the proposed rate shall be at least six percent per annum greater than
such prevailing prime rate, and in the case of all other such parcels,
the proposed rate shall be at least equal to such prevailing prime rate.
The council may by resolution adopt interest rates to be applicable to
the aforementioned parcels and may specify in such resolution the dates
on which such interest rates are to take effect. In the event the coun-
cil does not adopt interest rates as provided in this subdivision, the
interest rates otherwise specified in this section shall be applicable.
§ 11-224.1 Interest on unpaid real property tax.
(a) For real property with an assessed value of eighty thousand
dollars or less, if an installment of tax due and payable is not paid by
July fifteenth, October fifteenth, January fifteenth or April fifteenth,
interest shall be imposed on such unpaid amounts.
(b) For real property with an assessed value of over eighty thousand
dollars, if an installment of tax due and payable is not paid by July
first or January first, interest shall be imposed on such unpaid
amounts.
(c) If the council does not adopt interest rates by July first, two
thousand twenty-five, the rates shall be (i) for real property with an
assessed value of eighty thousand dollars or less, seven percent per
annum; and (ii) for real property with an assessed value of over eighty
thousand dollars, fifteen percent per annum.
(d) (i) Any tax or part of a tax that became due before July first,
two thousand five and remains unpaid after June thirtieth, two thousand
twenty-five, shall continue to accrue interest until paid at the rate
applicable under this section.
(ii) This section shall not apply to interest accrued before July
first, two thousand twenty-five.
(e) By May twenty-fifth of each year, the banking commission shall
send a written recommendation to the council of a proposed interest rate
to be charged for nonpayment of taxes on real property. The commission
shall consider the prevailing interest rates charged for commercial
loans extended to prime borrowers by commercial banks operating in the
city and:
(i) for real property with an assessed value of eighty thousand
dollars or less, shall propose a rate at least equal to such prevailing
prime rate;
(ii) for real property with an assessed value of over eighty thousand
dollars, shall propose a rate of at least six percent per annum greater
than such prevailing prime rate.
The council may by resolution adopt interest rates to be applicable to
the aforementioned properties and may specify in such resolution the
date that such rates will take effect.
(f) If the tax rate for any fiscal year of the city is not set by the
fifteenth of June preceding the start of such fiscal year, interest
shall not be charged for the first installment of tax which is due on
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the first day of July in such fiscal year if such installment is paid on
or before the extended payment date. For this purpose, the term
"extended payment date" means the date which falls the same number of
days after the first day of July in such fiscal year as the number of
days the date such tax rate is set falls after such fifteenth day of
June.
(g) For purposes of this section, property held in the cooperative
form of ownership shall not be deemed to have an assessed value of over
eighty thousand dollars if the property's assessed value divided by the
number of residential dwelling units is eighty thousand dollars or less
per unit.
§ 11-225 Power of tax commission to remit or reduce taxes. The tax
commission shall have power to remit or reduce a tax imposed upon real
property where lawful cause therefor is shown or where such tax is found
to be excessive or otherwise erroneous, but such remission or reduction
shall be made only with respect to an assessment for which an applica-
tion for correction has been made pursuant to section one hundred
sixty-three of the charter, and no such remission or reduction shall be
made when a claim to correct the assessment or recover the tax would be
barred by passage of time or other adequate defense, or when, at the
time that the determination is rendered, applications for correction or
other proceedings are pending to review the assessment of such property
for more than one subsequent fiscal year, provided, however, the tax
commission shall have no power to remit or reduce a tax pursuant to this
section more than five years after the last day on which an application
for correction could have been filed to appeal the unlawful or erroneous
assessment upon which such tax was based. If such tax shall have been
paid the commissioner of finance is authorized to refund or credit the
amount of any such remission or reduction granted pursuant to this
section. When the correction results from an application for correction
made by the board of managers of a condominium, a refund may be paid to
the board of managers for distribution to the individual unit owners
with the consent of such board and on such conditions as the commission-
er deems appropriate.
§ 11-226 Special right of entry; certificate of president. A right of
entry upon real property and into buildings and structures at all
reasonable times to ascertain the character of the property shall not be
allowed to any person acting in behalf of the tax commission, other than
the officials mentioned in sections one hundred fifty-six and fifteen
hundred twenty-one of the charter of the preceding municipality as it
existed on the first of January in the year next succeeding the effec-
tive date of this section, unless a certificate therefor, executed in
writing and signed by the president of the tax commission, is presented
by such person to the owner, lessee or occupant of the premises or his
agent before entry thereon is made.
§ 11-227 Duties of authorized employees in examining applicants. a.
Employees of the tax commission, when authorized to take testimony on
application, shall reduce such testimony to writing.
b. Within ten days after the evidence on any application is taken,
they shall transmit the application and testimony so taken, with their
recommendation, to the tax commission at its main office or such other
office as the commission may prescribe.
§ 11-228 Testimony taken on application to constitute part of record.
All written testimony taken by the tax commission, by a commissioner, or
by an employee of the commission authorized to take testimony on appli-
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cations, shall constitute part of the record of the proceedings upon any
assessment.
§ 11-229 Solicitation of retainers prohibited. It shall be unlawful
for any person or his or her or its agents or employee, or any person
acting on his or her or its behalf, to solicit, or procure through
solicitation, either directly or indirectly, any retainer or agreement:
(a) Authorizing such person, or his or her or its agent, employee or
any person acting on his or her or its behalf, to make application to
the commissioner of finance or tax commission for the correction of a
tentative or final assessed valuation of real property on behalf of an
owner of such property or other person claiming to be aggrieved, or
(b) Authorizing such person, or his or her or its agent, employee or
any person acting on his or her or its behalf, to appear for such
purpose or represent such owner or aggrieved person before such commis-
sion or a commissioner or any other officer or employee authorized by
law to act upon such application, examine applicants, take testimony,
make or recommend the making of a correction of any such assessed valu-
ation, or take any other official action in relation to any such
correction. Any violation of this section shall be a misdemeanor.
§ 11-230 Issuance of final determination; limitation of time. Except
as otherwise provided in section one hundred sixty-five of the charter
of the preceding municipality as it existed on the first of January in
the year next succeeding the effective date of this section, the final
determination of the tax commission upon any application for the
correction of an assessment and upon the evidence taken thereunder
shall, where the evidence is taken by the commission or by a commission-
er, be rendered within thirty days after the hearing of such application
is closed. Where the evidence is taken by an employee of the tax commis-
sion authorized to take testimony on applications, the final determi-
nation shall be rendered within thirty days after the application and
the testimony hereon shall have been filed with the commission at its
main office.
Immediately upon making a correction of an assessment, the tax commis-
sion shall notify the commissioner of finance thereof.
§ 11-231 Proceeding to review tax assessment; contents of petition. a.
Any person or corporation claiming to be aggrieved by the assessed valu-
ation of real property may commence a proceeding to review or correct on
the merits a final determination of the tax commission by serving on the
president of the tax commission, or his or her duly authorized agent, a
copy of a verified petition as prescribed by law. No such petition shall
be accepted unless, prior to the service thereof, an index number has
been obtained from the county clerk. Within ten days after a proceeding
has been commenced as hereinbefore provided, the original verified peti-
tion with proof of service shall be filed in the office of the clerk of
the court in which the proceeding is to be heard.
b. Such review shall be allowed only on one or more of the following
grounds, which must be specified in such petition:
1. That the assessment is illegal, and stating the particulars of the
alleged illegality, or
2. That the assessment is erroneous by reason of over-valuation, or
3. That the assessment is erroneous by reason of inequality, in that
it has been made at a higher proportionate valuation than the assessment
of other real property on the assessment rolls of the city for the same
year, and for assessments made after December thirty-first, nineteen
hundred eighty-one, other real property within the same class as defined
in section eighteen hundred two of the real property tax law, specifying
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the instances in which such inequality exists and the extent thereof,
and stating that the petitioner is or will be injured thereby, or
4. That the real property is misclassified, and stating the class in
which it is claimed the property should be classified.
c. The proceeding shall be maintained against the tax commission
either by naming the president and the commissioners of the tax commis-
sion individually, or by naming the tax commission of the city of Staten
Island generally.
d. Such proceeding to review and all proceedings thereunder shall be
brought at a special term of the supreme court in the judicial district
where the real property so assessed is situated.
e. The justice or referee before whom such proceeding shall be heard
may inspect the real property which is the subject of the proceeding.
§ 11-232 Comptroller; rates of interest on taxes and assessments. The
comptroller shall not reduce the rate of interest upon any taxes or
assessments below the amount fixed by law.
§ 11-233 Cancellation of unpaid taxes. When it shall appear to the
comptroller that the unpaid taxes or assessments, or both, together with
the interest and penalties thereon which may have been levied upon a
parcel of real estate subject to easements which were in existence prior
to the levying of such taxes or assessments, equal or exceed the sum for
which, under ordinary circumstances, such parcel of real estate would
sell subject to such easements, the comptroller, with the written
approval of the corporation counsel, may settle and adjust such unpaid
taxes or assessments, or both, with the interest and penalties thereon,
and when it shall appear to the comptroller that such parcel of real
estate would sell under ordinary circumstances subject to such easements
for only a nominal sum, then the comptroller with the written approval
of the corporation counsel may cancel such unpaid taxes and assessments
together with the interest and penalties thereon.
§ 11-235 Board of estimate; power to cancel taxes, assessments and
water rents. The board of estimate, upon the written certificate of the
comptroller approving the same, with whom application for relief under
this section shall be filed, in its discretion and upon such terms as it
may deem proper, by unanimous vote, may cancel and annul all taxes,
assessments and water rents and sales to the city of any or all of the
same which now are or may hereafter become a lien against any real
estate owned by any corporation, entitled to exemption of such real
estate owned by it from local taxation under the provisions of the real
property tax law formerly contained in subdivision six of section four
of the tax law, provided that all taxes and water rents from which
relief is asked be apportioned as of the date such corporation took
title to such real estate, and that such taxes and water rents so appor-
tioned to the period before such date, and all assessments which became
a lien before such date, be paid. The commissioner of finance shall mark
the city's books and rolls of taxes, assessments and water rents in
accordance with the determination of the board of estimate in every case
in which action shall be taken under the provisions of this section.
§ 11-236 Powers of board of estimate to cancel taxes, water rents and
assessments. The council by local law may authorize the board of esti-
mate, by a unanimous vote, upon the written consent of the comptroller,
to cancel and annul any taxes, water rents and assessments constituting
a lien against any real property owned by a corporation whose property
is exempt from taxation under the provisions of the real property tax
law, notwithstanding that such taxes, water rents or assessments shall
have become a lien against such real property while owned by a person or
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corporation not exempt under such section. The commissioner of finance
shall mark the city's books and rolls of taxes and assessments in
accordance with the determination of the board of estimate under such
local law.
§ 11-237 Cancellation of assessments, water and sewer rents on real
property acquired by tax enforcement foreclosure proceedings. Upon the
cancellation of unpaid assessments, water and sewer rents by the city
collector pursuant to section 11-353 of this title, the comptroller
shall charge the unpaid amounts for assessments for local improvements,
so cancelled, to the surplus in the appropriate assessment fund; the
unpaid amounts for water charges, meter setting and repair, meter glass-
es and sewer rents, so cancelled, shall be deducted from the accounts
receivable of the appropriate fund.
§ 11-238 Real property tax surcharge on absentee landlords. a. Impo-
sition of surcharge. A real property tax surcharge is hereby imposed on
class one property, as defined in section eighteen hundred two of the
real property tax law, excluding vacant land, that provides rental
income and is not the primary residence of the owner or owners of such
class one property, or the primary residence of the parent or child of
such owner or owners, in an amount equal to zero percent of the net real
property taxes for fiscal years beginning on or after the first of July
in the second year next succeeding the effective date of this section.
As used in this section, "net real property tax" means the real property
tax assessed on class one property after deduction for any exemption or
abatement received pursuant to the real property tax law or this title.
b. Rental income, primary residence and/or relationship to owner or
owners. The property shall be deemed to be the primary residence of the
owner or owners thereof, if such property would be eligible to receive
the real property tax exemption pursuant to section four hundred twen-
ty-five of the real property tax law, regardless of whether such owner
or owners has filed an application for, or the property is currently
receiving, such exemption. Proof of primary residence and the resident's
or residents' relationship to the owner or owners and the absence of
rental income shall be in the form of a certification as required by the
rules of the commissioner.
c. Rules. The department of finance shall have, in addition to any
other functions, powers and duties which have been or may be conferred
on it by law, the power to make and promulgate rules to carry out the
purposes of this section, including, but not limited to, rules related
to the timing, form and manner of any certification required to be
submitted under this section.
d. Penalties. 1. Notwithstanding any provision of any general, special
or local law to the contrary, an owner or owners shall be personally
liable for any taxes owed pursuant to this section whenever such owner
or owners fail to comply with this section or the rules promulgated
hereunder, or makes a false or misleading statement or omission and the
commissioner determines that such act was due to the owner or owners'
willful neglect, or that under such circumstances such act constituted a
fraud on the department. The remedy provided herein for an action in
person shall be in addition to any other remedy or procedure for the
enforcement of collection of delinquent taxes provided by general,
special or local law.
2. If the commissioner should determine, within three years from the
filing of an application or certification pursuant to this section, that
there was a material misstatement on such application or certification,
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he or she shall impose a penalty tax against the property of five
hundred dollars, in accordance with the rules promulgated hereunder.
e. Cessation of use. In the event that a property granted an exemption
from taxation pursuant to this section ceases to be used as the primary
residence of such owner or owners or his, her or their parent or child,
or produces rental income, such owner or owners shall so notify the
commissioner.
SUBCHAPTER 2
EXEMPTIONS FROM REAL PROPERTY TAXATION
PART 1
EXEMPTIONS FOR CERTAIN RESIDENTIAL PROPERTY
§ 11-241 Discrimination in tax exempt projects. No exemption from
taxation, for any project, other than a project hitherto agreed upon or
contracted for, shall be granted to a housing company, insurance compa-
ny, redevelopment company or redevelopment corporation, which shall
directly or indirectly, refuse, withhold from, or deny to any person any
of the dwelling or business accommodations in such project or property,
or the privileges and services incident to occupancy thereof, on account
of the race, color or creed of any such person.
Any exemption from taxation hereafter granted shall terminate sixty
days after a finding by the supreme court of the state of New York that
such discrimination is being or has been practiced in such project or
property; if within sixty days such discrimination shall have been
ended, then the exemption shall not terminate.
§ 11-242 Exemption and tax abatement in regard to improvements of
substandard dwellings. a. As used in this section, the following terms
shall have the following meanings: 1. "Alteration" and "improvement": a
physical change in an existing dwelling other than painting, ordinary
repairs, normal replacements or maintenance items.
2. "Existing dwelling": a class A multiple dwelling in existence prior
to the commencement of alterations for which tax exemption and abatement
is claimed under the terms of this section and for which a valuation
appears on the annual record of assessed valuation of the city for the
fiscal year nineteen hundred fifty-five--nineteen hundred fifty-six.
3. "Start" on alteration or improvement: begin any physical operation
undertaken for the purpose of making alterations or improvements to an
existing dwelling.
4. "Complete" an alteration or improvement: conclude or terminate any
physical operation such as is referred to in subparagraph three of this
paragraph, to an extent or degree which renders such building capable of
use for the purpose for which the improvements or alterations were
intended.
5. "Multiple dwelling": multiple dwellings as that term is defined in
section four of the multiple dwelling law.
b. Any increase in assessed valuation resulting from alterations and
improvements to existing dwellings to eliminate presently existing
unhealthy or dangerous conditions in any existing dwelling or to replace
inadequate and obsolete sanitary facilities in any such dwelling, any of
which represent fire or health hazards, or to provide central or other
appropriate and approved heating, except insofar as the gross cubic
content of the building is increased thereby, shall be exempt from taxa-
tion for local purposes for a period of twelve years after the taxable
status date immediately following the completion of the alterations and
improvements, to the extent that such increase in assessed valuation
result from the reasonable cost of such alterations and improvements,
providing that construction is started after March first, nineteen
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hundred fifty-five and completed before December thirty-first, nineteen
hundred fifty-nine. The assessed valuation allocated to such dwelling
after such alterations and improvements during such period of twelve
years, exclusive of the increase in valuation which is exempted, shall
not exceed the valuation of the previously existing dwelling appearing
on the assessment rolls after the taxable status date immediately
preceding the commencement of such alterations and improvements. The
assessed valuation of the land occupied by such dwelling and any
increase in valuation resulting from alterations and improvements other
than those made pursuant to this section, shall not be affected by the
provisions of this section.
c. The taxes upon any such property, including the land, shall be
abated and reduced by an amount equal to eight and one-third per centum
of the reasonable cost of such alterations and improvements each year
for a period of nine years commencing with the first tax bill for the
first tax year in which the exemption herein provided is effective, but
such abatement of taxes in any consecutive twelve-month period shall in
no event exceed the amount of taxes payable in such period.
d. The department of buildings shall determine and certify the reason-
able cost of any such alterations and improvements and for that purpose
may adopt rules and regulations, administer oaths to and take testimony
of any person, including but not limited to the owner of such property,
may issue subpoenas requiring the attendance of such persons and the
production of such books, papers or other documents as the department
shall deem necessary, may make preliminary estimates of the maximum
reasonable cost of such alterations and improvements, may establish
maximum allowable costs for specified units, fixtures or work in such
alterations or improvements, and may require the submission of plans and
specifications of such alteration and improvements before the start
thereof. Application forms for the benefits of this section shall be
filed with the tax commission between February first and March fifteenth
and the tax commission shall certify to the city collector the amount of
taxes to be abated and reduced, pursuant to the certification of the
commissioner of buildings as herein provided. No such application shall
be accepted unless accompanied by copies of certificates of the city
planning commission and the commissioner of buildings, as provided in
this subdivision and in subdivision e of this section.
e. To the end that alterations and improvements in such property shall
interfere as little as practicable with urgently needed public improve-
ments, and the clearance and rebuilding of substandard and insanitary
areas, and shall be confined to multiple dwellings which are struc-
turally sound, comply with applicable provisions of law, and are
provided with adequate central or other appropriate and approved heating
exemption or abatement from taxation hereunder shall be restricted to
dwellings which: (1) the city planning commission certify will not undu-
ly interfere with projected public improvements or the clearance and
rebuilding of substandard and insanitary areas which certification shall
be evidenced by a certificate describing the property involved and shall
be issued upon application to such city planning commission in such
manner and in such form as may be prescribed by such city planning
commission, and (2) which the department of buildings shall certify to
be structurally sound, comply with applicable provisions of law and
provide central or other appropriate and approved heating, which certif-
ication shall be evidenced by a certificate describing the property
involved and shall be issued upon application to the department of
buildings in such manner and in such form as may be prescribed by such
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department. Where the improvements and alterations include or benefit
that part of a building which is occupied by stores or used for commer-
cial purposes, the cost shall be apportioned so that the benefits of
this section shall not be provided for the cost of the improvements or
alterations made for store or commercial purposes.
f. Notwithstanding the provisions of the multiple dwelling law, or any
local law, ordinance, provisions of this code, rule or regulation, any
dwelling to which alterations and improvements are made pursuant to this
section and which did not require a certificate of occupancy on April
second, nineteen hundred forty-five, may be occupied lawfully after such
date upon the completion of such alterations and improvements without
such a certificate being obtained, provided, however, that such alter-
ations and improvements shall have been made in conformity with law and
the applicable provisions for fire protection required by articles six
and seven of the multiple dwelling law.
g. No owner of a dwelling to which the benefits of this section shall
be applied nor any agent, employee, manager or officer of such owner
shall directly or indirectly deny to any person because of race, color,
creed, or religion any of the dwelling accommodations in such property
or any of the privileges or services incident to occupancy therein.
h. Each agency to which functions are assigned by this section may
adopt rules and regulations for the effectuation of the purposes of this
section, and a copy, for each member of the council, of such rules and
regulations shall be filed with the clerk of the council prior to
promulgation.
i. Any person who shall knowingly and wilfully make any false state-
ment as to any material matter in any application for the benefits of
this section shall be guilty of an offense punishable by a fine of not
more than five hundred dollars or imprisonment for not more than ninety
days, or both.
j. The benefits of this section shall not apply to any multiple dwell-
ing which is not subject to the provisions of the emergency housing rent
control law or its successor statute for the city of Staten Island,
provided that this subdivision shall not operate to rescind any benefits
granted by the tax commission under this section prior to July first,
nineteen hundred fifty-eight; and further provided that where the bene-
fits herein provided were or are granted by the tax commission on or
after July first, nineteen hundred fifty-eight to any multiple dwelling
which is decontrolled subsequent to the granting of such benefits, the
tax commission shall withdraw such benefits, effective upon the
commencement of the first tax year following the tax year in which such
multiple dwelling is decontrolled.
§ 11-243 Reextension of exemption and tax abatement in regard to
improvements of substandard dwellings. a. As used in this section, the
following terms shall have the following meanings:
1. "Alteration" and "improvement": a physical change in an existing
dwelling other than painting, ordinary repairs, normal replacement of
maintenance items, provided, however, that ordinary repairs and normal
replacement of maintenance items, as defined by rules adopted by the
department of housing preservation and development pursuant to subdivi-
sion m of this section, shall be eligible for tax exemption and tax
abatement under this section provided that repairs and maintenance
items:
(1) were started and completed within a twelve-month period,
(2) were made to any common area of the dwelling premises concurrently
with a major capital improvement thereto, as defined by rules adopted by
A. 10030 185
the department of housing preservation and development pursuant to
subdivision m of this section,
(3) require the issuance of a permit for at least one item thereof by
any city agency, and
(4) the amount of money expended thereon shall not exceed two times
the amount expended on the major capital improvement performed concur-
rently therewith.
"Alteration" and "improvement" shall also mean "an abatement" of lead-
based paint hazards, as defined in part 745 of title forty of the code
of federal regulations or any successor regulations in any existing
dwelling including any common areas, and shall include an "inspection"
and "risk assessment" for lead-based paint hazards, as defined in such
part, in a dwelling unit whether such unit is vacant or occupied but
shall not include any work performed to comply with a notice of
violation issued for a violation of article fourteen of subchapter two
of chapter two of title 27 of the administrative code of the city of New
York. For purposes of this paragraph, the term, "targeted area" shall
mean the geographical area of New York city that is determined by the
department of health and mental hygiene to have high rates of children
with environmental intervention blood lead levels. The department of
housing preservation and development shall establish two schedules of
certified reasonable costs for items that are included in an abatement
of lead-based paint hazards, one covering such abatement that is
performed in an eligible dwelling unit or common area located in the
targeted area, and one covering such abatement that is performed in an
eligible dwelling unit or common area that is not located in the target-
ed area. The first such schedules shall be promulgated by the department
of housing preservation and development within 180 days of the effective
date of this section and shall be used for any such abatements that are
commenced on or after August 2, 2004. Such schedules shall be reviewed
by such department biennially following their effective dates and
amended as necessary. Notwithstanding any other provision of law or
rule, an owner who performs an abatement of lead-based paint hazards
pursuant to this paragraph shall not be required to comply with subdivi-
sion y of this section which provides for filing of a notice of intent
form prior to the commencement of work, and no additional fee or penalty
shall be due and owing the department at the time of issuance of a
certificate of eligibility and reasonable cost for failure to file such
notice of intent.
2. "Existing dwelling": except as hereinafter provided in subdivision
d of this section, a class A multiple dwelling or a building consisting
of one or two dwelling units over space used for commercial occupancy in
existence prior to the commencement of alterations for which tax
exemption and abatement is claimed under the terms of this section and
for which a valuation appears on the annual record of assessed valuation
of the city for the fiscal year immediately preceding the commencement
of such alterations and improvements.
3. "Start" an alteration or improvement: begin any physical operation
undertaken for the purpose of making alterations or improvements to an
existing dwelling.
4. "Complete" an alteration or improvement: conclude or terminate any
physical operation such as is referred to in paragraph three of this
subdivision, to an extent or degree which renders such building capable
of use for the purpose for which the improvements or alterations were
intended.
A. 10030 186
5. "Multiple dwelling": multiple dwellings as that term is defined in
section four of the multiple dwelling law.
6. "Moderate rehabilitation": shall mean a scope of work which
(a) includes a building-wide replacement of a major component of one
of the following systems:
(1) Elevator
(2) Heating
(3) Plumbing
(4) Wiring
(5) Window; and
(b) has a certified reasonable cost of not less than twenty-five
hundred dollars, exclusive of any certified reasonable cost for ordinary
repairs, for each dwelling unit in existence at the commencement of the
rehabilitation; except that the department of housing preservation and
development may establish a minimum certified reasonable cost to be
greater than twenty-five hundred dollars per dwelling unit pursuant to
subdivision m of this section.
7. "Substantially occupied": shall mean an occupancy of not less than
sixty percent of all dwelling units immediately prior and during reha-
bilitation, except that the department of housing preservation and
development may establish higher percentages of occupancy pursuant to
subdivision m of this section.
8. "Private dwelling" shall mean any building or structure designed
and occupied for residential purposes by not more than two families.
Private dwellings shall also be deemed to include a series of one-family
or two-family dwelling units each of which faces or is accessible to a
legal street or public thoroughfare, if each such dwelling unit is
equipped as a separate dwelling unit with all essential services, and if
each such unit is arranged so that it may be approved as a legal one-fa-
mily or two-family dwelling.
b. Subject to the limitations provided in subdivision d of this
section and the restrictions in this section on conversion of buildings
used in whole or in part for single room occupancy, any increase in the
assessed valuation of real property shall be exempt from taxation for
local purposes to the extent such increase results from the reasonable
cost of: (1) the conversion of a class B multiple dwelling to a class A
multiple dwelling except insofar as the gross cubic content of such
building is increased thereby; or (2) the conversion of any nonresiden-
tial building or structure situated in the county of Richmond to a class
A multiple dwelling except insofar as the gross cubic content of such
building or structure is increased thereby; or (3) alterations or
improvements to the exterior of an otherwise eligible building or struc-
ture visible from a public street pursuant to a permit issued by the
landmarks commission with respect to a designated historic or landmark
site or structure; or (4) alterations or improvements constituting a
moderate rehabilitation of a substantially occupied class A multiple
dwelling except insofar as the gross cubic content of such building or
structure is increased thereby; or (5) alterations or improvements to an
otherwise eligible building or structure commenced after January first,
nineteen hundred eighty designed to conserve the use of fuel, electric-
ity or other energy sources or to reduce demand for electricity, includ-
ing the installation of meters for purposes of measuring the amount of
electricity consumed for each dwelling unit, and conversions of direct
metering to a system that includes a master meter and submeters in any
cooperative, condominium, or housing development fund company organized
under article eleven of the private housing finance law; or (6) alter-
A. 10030 187
ations or improvements to existing dwellings to eliminate existing
unhealthy or dangerous conditions in any such existing dwelling or
replace inadequate and obsolete sanitary facilities in any such existing
dwelling, any of which represents fire or health hazards, including as
improvements asbestos abatement to the extent such asbestos abatement is
required by federal, state or local law, except insofar as the gross
cubic content of such existing dwelling is increased thereby; or (7)
conversion of residential units qualified for the protection of article
seven-C of the multiple dwelling law in buildings or portions thereof
registered with the New York city loft board as interim multiple dwell-
ings pursuant to such article to units which are in compliance with the
standards of safety and fire protection set forth in article seven-B of
the multiple dwelling law or to units which have a certificate of occu-
pancy as class A multiple dwellings; or (8) alterations or improvements
commenced on or after September first, nineteen hundred eighty-seven
constituting a substantial rehabilitation of a class A multiple dwell-
ing, or a conversion of a building or structure into a class A multiple
dwelling, as part of a program to provide housing for low and moderate
income households as defined by the department of housing preservation
and development pursuant to the rules and regulations promulgated pursu-
ant to subdivision m of this section, provided that such alterations or
improvements or conversions shall be aided by a grant, loan or subsidy
from any federal, state or local agency or instrumentality, including,
in the discretion of the department of housing preservation and develop-
ment, a subsidy in the form of a below market sale from the city of New
York; or (9) alterations or improvements to any private dwelling or
conversion of any private dwelling to a multiple dwelling or conversion
of any multiple dwelling to a private dwelling, provided that such
alterations, improvements or conversions are part of a project that has
applied for or is receiving benefits pursuant to this section and shall
be aided by a grant, loan or subsidy from any federal, state or local
agency or instrumentality. Such conversions, alterations or improvements
shall be completed within thirty-six months after the date on which same
shall be started except that such thirty-six month limitation shall not
apply to conversions of residential units which are registered with the
loft board in accordance with article seven-C of the multiple dwelling
law pursuant to paragraph eight of this subdivision. Provided, however,
a sixty-month period for completion shall be available for alterations
or improvements undertaken by a housing development fund company organ-
ized pursuant to article eleven of the private housing finance law,
which are carried out with the substantial assistance of grants, loans
or subsidies from any federal, state or local governmental agency or
instrumentality or which are carried out in a property transferred from
the city of New York or the city of Staten Island if alterations and
improvements are completed within seven years after the date of trans-
fer. In addition, the department of housing preservation and development
may grant an extension of the period of completion for any project
carried out with the substantial assistance of grants, loans or subsi-
dies from any federal, state or local governmental agency or instrumen-
tality, if such alterations, improvements or conversions are completed
within sixty months from commencement of construction. Provided,
further, that such conversions, alterations or improvements shall in any
event be completed prior to the thirty-first of December in the third
year next succeeding the effective date of this section. Exemption for
conversions, alterations or improvements pursuant to paragraph one, two,
three, four, six, seven, eight or ten of this subdivision shall continue
A. 10030 188
for a period not to exceed fourteen years and begin no sooner than the
first tax period immediately following the completion of such conver-
sions, alterations or improvements. Exemption for alterations or
improvements pursuant to paragraph five or nine of this subdivision
shall continue for a period not to exceed thirty-four years and shall
begin no sooner than the first tax period immediately following the
completion of such alterations or improvements. Such exemption shall be
equal to the increase in the valuation, which is subject to exemption in
full or proportionally under this subdivision for ten or thirty years,
whichever is applicable. After such period of time, the amount of such
exempted assessed valuation of such improvements shall be reduced by
twenty percent in each succeeding year until the assessed value of the
improvements is fully taxable. Provided, however, exemption for any
conversions, alterations or improvements, which are aided by a loan or
grant under article eight, eight-A, eleven, twelve, fifteen, or twenty-
two of the private housing finance law, section six hundred ninety-six-a
or section ninety-nine-h of the general municipal law, or section three
hundred twelve of the housing act of nineteen hundred sixty-four (42
U.S.C.A. 1452b), or the Cranston-Gonzalez national affordable housing
act, (42 U.S.C.A. 12701 et. seq.), or started after July first, nineteen
hundred eighty-three by a housing development fund company organized
pursuant to article eleven of the private housing finance law which are
carried out with the substantial assistance of grants, loans or subsi-
dies from any federal, state or local governmental agency or instrumen-
tality or which are carried out in a property transferred from the city
of New York and where alterations and improvements are completed within
seven years after the date of transfer may commence at the beginning of
any tax period subsequent to the start of such conversions, alterations
or improvements and prior to the completion of such conversions, alter-
ations or improvements. The assessed valuation of the land occupied by
such dwelling and any increase in assessed valuation resulting from
conversions, alterations, or improvements other than those made pursuant
to this section shall not be affected by the provisions of this section.
b-1. Notwithstanding the provisions of subdivision b of this section,
alterations, improvements or conversions of any building or structure
that are eligible for benefits pursuant to subdivision b of this section
except insofar as the gross cubic content of such building or structure
is increased thereby shall be eligible for such benefits insofar as the
gross cubic content of such building or structure is increased thereby
provided that:
(1) for all tax lots now existing or hereafter created, at least fifty
percent of the floor area of the completed building or structure
consists of the pre-existing building or structure that was converted,
altered or improved in accordance with subdivision b of this section,
and
(2) for tax lots now existing or hereafter created within the follow-
ing area in the borough of Manhattan, such conversions, alterations or
improvements are aided by a grant, loan or subsidy from any federal,
state or local agency or instrumentality: beginning at the intersection
of the United States pierhead line in the Hudson river and the center
line of Chambers street extended, thence easterly to the center line of
Chambers street and continuing along the center line of Chambers street
to the center line of Centre street, thence southerly along the center
line of Centre street to the center line of the Brooklyn Bridge to the
intersection of the Brooklyn Bridge and the United States pierhead line
in the East river, thence northerly along the United States pierhead
A. 10030 189
line in the East river to the intersection of the United States pierhead
line in the East river and the center line of one hundred tenth street
extended, thence westerly to the center line of one hundred tenth street
and continuing along the center line of one hundred tenth street to its
westerly terminus, thence westerly to the intersection of the center
line of one hundred tenth street extended and the United States pierhead
line in the Hudson river, thence southerly along the United States pier-
head line in the Hudson river to the point of beginning.
(3) For purposes of this subdivision, "floor area" shall mean the
horizontal areas of the several floors or any portion thereof of a
dwelling or dwellings and accessory structures on a lot measured from
the exterior faces of exterior walls or from the center line of party
walls.
(4) Nothing in this subdivision shall be construed to provide tax
abatement benefits pursuant to subdivision c of this section for the
costs attributable to the increased cubic content in any such building
or structure.
c. (1) Except as provided in paragraphs two, three and four of this
subdivision, the taxes upon any real property, including the land, may
be abated each year for a period of not more than twenty years by an
amount no greater than eight and one-third per centum of the reasonable
cost of eligible conversions, alterations or improvements provided in
paragraphs one through eight and paragraph ten of subdivision b of this
section provided that the abatement in taxes in any consecutive twelve-
month period shall in no event exceed the amount of taxes payable in
such twelve-month period; and provided further that alterations or
improvements pursuant to paragraph four of subdivision b of this section
shall only receive the benefits of this section if construction
commenced after January first, nineteen hundred seventy-eight and that
in no event shall the aggregate abatement exceed ninety per centum of
the reasonable cost of conversions, alterations or improvements provided
in paragraphs one, three, four, six, seven, and ten of subdivision b of
this section, or exceed fifty per centum of the reasonable cost of
conversions pursuant to paragraph one of subdivision b of this section
if construction commenced after January first, nineteen hundred eighty-
two or exceed fifty per centum of the reasonable cost of conversions
pursuant to paragraphs two and eight of subdivision b of this section,
or exceed one hundred per centum of the reasonable cost of alterations
or improvements pursuant to paragraph five of subdivision b of this
section provided that where alterations or improvements pursuant to
paragraphs four and six of subdivision b of this section are done in
conjunction with a conversion pursuant to paragraph two of subdivision b
of this section, the aggregate abatement shall not exceed fifty per
centum of the reasonable cost. Notwithstanding the foregoing, the taxes
upon real property, including the land may be abated for a period of not
more than twenty years at eight and one-third per centum of the reason-
able cost of conversions where construction actually commenced in good
faith prior to July first, nineteen hundred eighty pursuant to an alter-
ation permit issued by the department of buildings prior to July first,
nineteen hundred eighty provided that the aggregate abatement shall not
exceed ninety per centum of the reasonable cost thereof and provided
further that in no event shall the abatement in taxes in any twelve-
month period exceed the amount of taxes payable in such twelve-month
period. In no event, however, shall the aggregate abatement for conver-
sions, alterations or improvements pursuant to subdivision b of this
section exceed such dollar limit per existing class A dwelling unit or
A. 10030 190
additional unit created by conversion to a class A multiple dwelling as
may be established pursuant to rules and regulations promulgated by the
department of housing preservation and development pursuant to subdivi-
sion m of this section. Only those items of work set forth in the item-
ized cost breakdown schedule contained in rules and regulations promul-
gated by the department of housing preservation and development pursuant
to subdivision m of this section shall be eligible for tax abatement.
Such abatement shall commence on the later of July first, nineteen
hundred seventy-eight or the first day of the first tax quarter follow-
ing the completion of such construction and the filing for benefits as
provided in subdivision h of this section except that such period of
abatement may commence on the later of the first day of the first tax
quarter following commencement of any conversion, alteration or improve-
ment or (i) July first, nineteen hundred seventy-six, if aided by a loan
pursuant to article eight of the private housing finance law and
completed after December thirty-first, nineteen hundred seventy-five; or
(ii) July first, nineteen hundred seventy-seven, if aided by a loan
pursuant to article fifteen of the private housing finance law; or (iii)
July first, nineteen hundred eighty, if aided by a loan pursuant to
article eight-A of the private housing finance law; or (iv) July first,
nineteen hundred eighty, if aided by a loan pursuant to section three
hundred twelve of the housing act of nineteen hundred sixty-four (42
U.S.C.A. §1452b); or (v) July first, nineteen hundred ninety-two, if
started after such date and aided by a loan or grant under article elev-
en, twelve, or twenty-two of the private housing finance law, section
six hundred ninety-six-a or section ninety-nine-h of the general munici-
pal law, or the Cranston-Gonzalez national affordable housing act (42
U.S.C.A. 12701 et seq.); or (vi) July first, nineteen hundred eighty-
eight, if started after such date by or on behalf of a company not qual-
ified under any of the above provisions, which is a not-for-profit
corporation qualified pursuant to section 501(c)(3) of the internal
revenue code and which has entered into a regulatory agreement with the
local housing agency requiring operation of the property as housing for
low and moderate income persons and families.
(2) In the case of alterations or improvements pursuant to paragraph
five of subdivision b of this section which are carried out with the
substantial assistance of grants, loans or subsidies from any federal,
state or local agency or instrumentality or any not-for-profit philan-
thropic organization one of whose primary purposes is providing low or
moderate income housing or financed with mortgage insurance by the New
York city residential mortgage insurance corporation or the state of New
York mortgage agency or pursuant to a program established by the federal
housing administration for rehabilitation of existing multiple dwellings
in a neighborhood strategy area as defined by the United States depart-
ment of housing and urban development, the abatement of taxes on such
property, including the land, shall not exceed the lesser of the actual
cost of the alterations or improvements or one hundred fifty per centum
of the certified reasonable cost of the alterations or improvements, as
determined under regulations of the department of housing preservation
and development, and the annual abatement of taxes shall not exceed
twelve and one-half per centum of such certified reasonable cost,
provided that such abatement shall not be effective for more than twenty
years and the annual abatement of taxes in any consecutive twelve-month
period shall in no event exceed the amount of taxes payable in such
twelve-month period.
A. 10030 191
(3) In the case of alterations or improvements carried out with the
substantial assistance of grants, loans or subsidies from any federal,
state or local agency or instrumentality or any not-for-profit philan-
thropic organization one of whose primary purposes is providing low or
moderate income housing, or financed with mortgage insurance by the New
York city residential mortgage insurance corporation or the state of New
York mortgage agency or pursuant to a program established by the federal
housing administration for rehabilitation of existing multiple dwellings
in a neighborhood strategy area as defined by the United States depart-
ment of housing and urban development where such alterations or improve-
ments are done on property located in census tracts in which seventy-
five percent or more of the population live in households which earn
fifty percent or less of the median household income of the city, the
abatement of taxes on such property, including the land, shall not
exceed the lesser of the actual cost of the alterations or improvements
or one hundred fifty per centum of the certified reasonable cost of the
alterations or improvements, as determined under regulations of the
department of housing preservation and development, and the annual
abatement of taxes shall not exceed twelve and one-half per centum of
such certified reasonable cost, provided that such abatement shall not
be effective for more than twenty years and the annual abatement of
taxes in any consecutive twelve-month period shall in no event exceed
the amount of taxes payable in such twelve-month period.
(4) In the case of alterations, improvements or conversions pursuant
to paragraph eight of subdivision b of this section, the abatement of
taxes on such property, including the land, shall not exceed the lesser
of the actual cost of the alterations or improvements or one hundred
fifty per centum of the certified reasonable cost of the alterations or
improvements, as determined under regulations of the department of hous-
ing preservation and development, and the annual abatement of taxes
shall not exceed twelve and one-half per centum of such certified
reasonable cost, provided that such abatement shall not be effective for
more than twenty years and the annual abatement of taxes in any consec-
utive twelve-month period shall in no event exceed the amount of taxes
payable in such twelve-month period.
d. The benefits of this section shall apply:
(1) to any multiple dwelling which is altered, improved or increased
in valuation with aid of a loan provided by the city of New York or the
city of Staten Island, the New York city housing development corporation
or the United States department of housing and urban development for the
elimination of conditions dangerous to human life or detrimental to
health, including nuisances as defined in section three hundred nine of
the multiple dwelling law, or other rehabilitation or improvement wheth-
er or not all of the units thereof were in existence prior to rehabili-
tation pursuant to the provisions of: (i) article two, eight or eight-A
of the private housing finance law provided that such dwelling is made
available solely to persons or families of low income as defined in said
articles, (ii) article twelve of the private housing finance law, (iii)
article fifteen of the private housing finance law or (iv) any federal
law where the multiple dwelling is supervised or regulated by the United
States department of housing and urban development.
(2) except as hereinafter provided, to any building or structure which
is converted to a class A multiple dwelling or to any existing dwelling
which is substantially rehabilitated, and further provided that the
rents subsequent to conversion or substantial rehabilitation shall not
exceed such amount as may be fixed: (i) by the United States department
A. 10030 192
of housing and urban development, (ii) pursuant to the private housing
finance law of the state of New York, or (iii) pursuant to chapter three
or chapter four of title twenty-six of the code of the preceding munici-
pality, provided that the initial legal regulated rent for the dwelling
units shall be the rent charged and paid by the initial tenant and
registered with the New York state division of housing and community
renewal. Buildings or structures which are converted to class A multiple
dwellings and existing dwellings which are substantially rehabilitated
shall contain bedrooms in a number equal to at least fifty percent of
the apartments created where an alteration permit has been issued by the
department of buildings prior to April first, nineteen hundred eighty
and seventy-five percent of the apartments created where an alteration
permit has been issued by the department of buildings on or after April
first, nineteen hundred eighty provided, however, that if a building or
structure is converted from a non-residential use to a class A multiple
dwelling and the units therein contain an average floor area of one
thousand square feet, such requirement as to the number of bedrooms
shall not be applicable and if an existing dwelling is substantially
rehabilitated, the seventy-five percent bedroom requirement shall be
reduced to the extent its application would necessitate a reduction in
the number of units which are contained in the existing dwelling prior
to commencement of substantial rehabilitation.
(3) to any multiple dwelling, building or structure otherwise eligible
for any of the benefits of this section which:
(i) is operated exclusively for the benefit of persons or families who
are or will be entitled to occupancy by reason of ownership of stock or
membership in the corporate owner, or for the benefit of such persons or
families and other persons or families entitled to occupancy under
applicable provisions of law without ownership of stock or membership in
the corporate owner, or (ii) is owned as a condominium and is occupied
as the residence or home of three or more families living independently
of each other; provided, however, that, in addition to all other condi-
tions of eligibility for the benefits of this section, except for multi-
ple dwellings in which units have been newly created by substantial
rehabilitation of vacant buildings or conversions of non-residential
buildings, the availability of benefits under this section for such
multiple dwellings, buildings or structures shall be conditioned on the
following: (a) alterations or improvements to at least one building-wide
system are part of the application for benefits, and (b) (i) the
assessed valuation of such multiple dwelling, building, or structure,
including land, shall not exceed an average of thirty thousand dollars
per dwelling unit at the time of the commencement of the alterations or
improvements, and (ii) during the three years immediately preceding the
commencement of the alterations or improvements the average per room
sale price of the dwelling units or the stock allocated to such dwelling
units shall have been no greater than thirty-five percent of the maximum
mortgage amount for a single family home eligible for purchase by the
Federal National Mortgage Association; provided that if less than ten
percent of the dwelling units or an amount of stock less than the amount
allocable to ten percent of such dwelling units was not transferred
during such preceding three year period, eligibility for benefits shall
be conditioned upon the multiple dwelling, building, or structure having
an assessed valuation per dwelling unit of no more than twenty-five
thousand dollars at the time of the commencement of the alterations or
improvements. Provided, further, that such benefits shall be available
A. 10030 193
only for alterations or improvements commenced on or after June first,
nineteen hundred eighty-six.
Notwithstanding the foregoing, the benefits of this section shall be
available for any alterations or improvements commenced after August
seventh, two thousand eight for such multiple dwellings, buildings or
structures and shall be conditioned on the following: (1) the applica-
tion for benefits may include any item of work designated in the rules
adopted by the department of housing preservation and development as a
major capital improvement or asbestos abatement to the extent such
asbestos abatement is required by federal, state and local law; and (2)
(i) the assessed valuation of such multiple dwelling, building or struc-
ture, including land, shall not exceed an average of forty thousand
dollars per dwelling unit at the time of the commencement of the alter-
ations or improvements; and (ii) the average per room sale price of the
dwelling units or the stock allocated to such dwelling units shall have
been no greater than thirty-five percent of the maximum mortgage amount
for a single family home eligible for purchase by the Federal National
Mortgage Association during the three years immediately preceding the
commencement of the alterations or improvements; provided that if less
than ten percent of the dwelling units or an amount of stock less than
the amount allocable to ten percent of such dwelling units was not
transferred during such preceding three-year period, eligibility for
benefits shall be conditioned upon the multiple dwelling, building, or
structure having an assessed valuation per dwelling unit of no more than
forty thousand dollars at the time of the commencement of the alteration
or improvement. Provided, however, benefits shall also be available
under this section for work completed in any such multiple dwelling,
building or structure within the first three years of its conversion to
cooperative or condominium ownership, as evidenced by the date on which
the first closing in a condominium to a bona fide purchaser occurs or in
the case of a cooperative, the date on which the shares allocable to a
unit are conveyed to a bona fide purchaser, provided, however, that the
availability of such benefits for conversions, alterations or improve-
ments commenced prior to June first, nineteen hundred eighty-six, except
with respect to governmentally assisted projects as defined in regu-
lations issued by the department of housing preservation and develop-
ment, shall be conditioned upon the completion of such conversions,
alterations or improvements within three years after acceptance for
filing of the prospectus to establish such cooperative or condominium
entity by the attorney general of the state of New York. The maximum
amount of tax abatement which may be received in any tax period under
this section by any such multiple dwelling, building or structure for
any alterations and improvements commenced three or more years after its
initial conversion to cooperative or condominium ownership shall be
limited to an amount not in excess of two thousand five hundred dollars
per dwelling unit of the certified reasonable cost of the alterations or
improvements as determined under regulations of the department of hous-
ing preservation and development.
(3-a) Notwithstanding any contrary provision of paragraph three of
this subdivision, the availability of any benefits under this section to
any multiple dwelling, building or structure owned and operated by a
limited-profit housing company established pursuant to article two of
the private housing finance law shall not be conditioned upon the
assessed valuation of such multiple dwelling, building or structure,
including land, as calculated as an average dollar amount per dwelling
unit, at the time of the commencement of the alterations or improve-
A. 10030 194
ments; provided, however, that such limited-profit housing company (i)
is organized and operating as a mutual company, (ii) continues to be
organized and operating as a mutual company and to own and operate the
multiple dwelling, building or structure receiving such benefits, and
(iii) has entered into a binding and irrevocable agreement with the
commissioner of housing of the state of New York, the supervising agen-
cy, the New York city housing development corporation, or the New York
state housing finance agency prohibiting the dissolution or reconsti-
tution of such limited-profit housing company pursuant to section thir-
ty-five of the private housing finance law for not less than fifteen
years from the commencement of such benefits. For the purposes of this
paragraph, the terms "mutual company" and "supervising agency" shall
have the same meanings as set forth in section two of the private hous-
ing finance law.
(4) provided that, in the case of any building or structure: (i) in
which conversion, alteration or improvement commences on or after Janu-
ary first, nineteen hundred eighty-two, and (ii) which is located within
an area designated herein as a minimum tax zone, the benefits of this
section shall not be applied to abate or reduce the taxes upon the land
portion of such real property, which shall continue to be taxed based
upon the assessed valuation of the land and the applicable tax rate at
the time such taxes are levied; provided, however, that the foregoing
limitation with respect to abatement of taxes shall not apply:
(A) to any multiple dwelling which is eligible for benefits based upon
moderate rehabilitation pursuant to paragraph four of subdivision b of
this section, or (B) to any multiple dwelling which is governmentally
assisted as such term is defined in regulations to be promulgated by the
department of housing preservation and development pursuant to subdivi-
sion m of this section.
(5) provided that, in the case of any building or structure: (i) in
which conversion, alteration or improvement commences on or after Janu-
ary first, nineteen hundred eighty-two, and (ii) which is located within
an area designated herein as a tax abatement exclusion zone, the bene-
fits of this section shall not be applied to abate or reduce the taxes
upon such real property, which shall continue to be taxed based upon the
assessed valuation of the land and the improvements and the applicable
tax rate at the time such taxes are levied; provided, however, that the
foregoing limitation shall not deprive such real property of any bene-
fits of exemption from taxation of an increase in assessed valuation to
which it is entitled pursuant to this section; provided, however, that
the foregoing limitation with respect to abatement of taxes shall not
apply:
(A) to any alteration or improvement designated as a major capital
improvement, by the regulations promulgated by the department of housing
preservation and development pursuant to subdivision m of this section,
provided that the maximum amount of tax abatement which may be received
in any tax period under this section by any such multiple dwelling,
building or structure for any alterations and improvements shall be
limited to an amount not in excess of twenty-five hundred dollars per
dwelling unit of the certified reasonable cost of the alterations and
improvements as determined under regulations of the department of hous-
ing preservation and development, or (B) to any multiple dwelling which
is governmentally assisted as such term is defined by said regulations.
(8) Limitation on benefits. (a) The provisions of this paragraph shall
apply to all conversions, alterations and improvements except the
following:
A. 10030 195
(i) alterations or improvements under paragraphs three, five and six
of subdivision b of this section, where carried out:
(A) with the substantial assistance of grants, loans or subsidies from
any federal, state or local agency or instrumentality, or any not-for-
profit philanthropic organization one of whose primary purposes is
providing low or moderate incoming housing; or
(B) with mortgage insurance by the New York city residential mortgage
insurance corporation or the state of New York mortgage agency; or
(C) in the areas bounded and described as follows:
AREAS IN THE COUNTY OF RICHMOND:
PORT RICHMOND--The area bounded by the Kill Van Kull; Jewett Avenue
and its prolongation; Forest Avenue; and, the Willow Brook Expressway.
NEW BRIGHTON--The area bounded by the Kill Van Kull; Westervelt
Avenue; Brook Street; Castleton Avenue; and, North Randall Avenue and
its prolongation.
STAPLETON--The area bounded by Victory Boulevard; the Upper New York
Bay; Vanderbilt Avenue; Van Duzer Street; Cebra Avenue; and, St. Pauls
Avenue.
FOX HILLS--The area bounded by Vanderbilt Avenue; the Upper New York
Bay; the Staten Island Rapid Transit Railway right of way; and, the
Staten Island Expressway.
(D) pursuant to a program established by the federal housing adminis-
tration, federal national mortgage association, federal home loan mort-
gage corporation or government national mortgage association for the
rehabilitation of existing multiple dwellings for persons of low or
moderate income, or a program of mortgage insurance for the rehabili-
tation of existing multiple dwellings pursuant to section two hundred
twenty-three-f of the national housing act, as amended, or a program of
mortgage insurance established by the federal housing administration for
the rehabilitation of existing multiple dwellings for persons of low or
moderate income; provided that properties receiving benefits under such
programs are located in a neighborhood strategy area, as defined, by the
United States department of housing and urban development, or in one of
the areas listed in subparagraph (C) of this paragraph.
(ii) alterations or improvements under paragraph four of subdivision b
of this section; and
(iii) conversion of residential units qualified for the protection of
article seven-C of the multiple dwelling law under paragraph seven of
subdivision b of this section.
(b) Abatement limitations. (i) The amount of abatement under subdivi-
sion c of this section shall not exceed the certified reasonable cost of
the conversion, alteration or improvement, as determined under regu-
lations of the department of housing preservation and development,
provided that the amount of certified reasonable cost eligible for
abatement under this section shall not exceed fifteen thousand dollars
for a dwelling unit of three and one-half rooms, as determined under the
applicable zoning resolution, and a comparable amount for dwelling units
of other sizes, determined under regulations of the department of hous-
ing preservation and development, and further provided that the amount
of certified reasonable cost eligible for abatement under this section
may exceed fifteen thousand dollars or such comparable amount per dwell-
ing unit, but not more than twenty-five percent above such amount, upon
application of the property owner and a determination by the department
of housing preservation and development that:
A. 10030 196
(A) in the case of a conversion under paragraph one or two of subdivi-
sion b of this section, the increased cost is necessary to comply with
applicable law;
(B) in the case of an alteration or improvement under paragraph six of
subdivision b of this section, the increased cost is necessary to elimi-
nate the unhealthy or dangerous conditions or replace the inadequate and
obsolete facilities in a satisfactory manner;
(C) in the case of an alteration or improvement under paragraph five
of subdivision b of this section, the increased cost is necessary to
conserve energy in a satisfactory manner; or
(D) in the case of an alteration or improvement under paragraph three
of subdivision b of this section, the increased cost, to the extent such
cost is not offset by any and all tax credits received as a result of
the alteration or improvement, is necessary to comply with any provision
of law regulating historic or landmark buildings or structures.
(ii) Notwithstanding any other provisions of this subparagraph, and in
addition to all other conditions of eligibility for the benefits of this
section, the availability of abatements pursuant to subdivision c of
this section for any multiple dwellings, buildings or structures not
owned as a condominium or cooperative, except for multiple dwellings in
which units have been newly created by substantial rehabilitation of
vacant buildings or conversions of non-residential buildings, shall be
conditioned on the assessed valuation of such multiple dwelling, build-
ing or structure, including land, not exceeding an average of thirty
thousand dollars per dwelling unit at the time of commencement of the
alterations or improvements, provided, however, that such average shall
not exceed forty thousand dollars per dwelling unit at the time of
commencement of the alteration or improvement for alterations or
improvements commenced after the effective date of this paragraph.
(c) Exemption limitations. (i) The increase in assessed valuation of
the real property resulting from the conversion, alteration or improve-
ment under subdivision b of this section, shall be exempt from taxation
as provided in this section, only to the extent provided in this subpar-
agraph, provided that this subparagraph shall not apply to any conver-
sions, alterations or improvements commenced on or after June first,
nineteen hundred eighty-six. The amount of the increased assessed valu-
ation that is exempt from taxation shall depend on the amount of the
total assessed value per dwelling unit calculated by dividing the amount
of the total assessed valuation of the property, as determined under the
real property tax law, by the number of dwelling units in the building
after completion of the conversion, alteration or improvement. The
amount of increased assessed valuation that will be exempt from taxation
for buildings with total assessed valuation per dwelling unit of less
than thirty-eight thousand dollars shall be calculated pursuant to the
following formula: (A) any portion of total assessed valuation of the
property attributable to the first eighteen thousand dollars of total
assessed valuation per dwelling unit, to the extent it represents
increased assessed valuation, shall be one hundred percent exempt; (B)
any portion of total assessed valuation attributable to the next four
thousand dollars of total assessed valuation per dwelling unit, to the
extent it represents increased assessed valuation, shall be seventy-five
percent exempt; (C) any portion of total assessed valuation attributable
to the next four thousand dollars of total assessed valuation per dwell-
ing unit, to the extent it represents increased assessed valuation,
shall be fifty percent exempt; (D) any portion of total assessed valu-
ation attributable to the next four thousand dollars of total assessed
A. 10030 197
valuation per dwelling unit, to the extent it represents increased
assessed valuation, shall be twenty-five percent exempt; and (E) any
portion of total assessed valuation attributable to the next eight thou-
sand dollars of total assessed valuation per dwelling unit, to the
extent it represents increased assessed valuation per dwelling unit,
shall be fully taxable. Property with a total assessed valuation per
dwelling unit of thirty-eight thousand dollars or more shall not be
eligible for a tax exemption under this section.
(ii) In calculating the amount of increased assessed valuation that
will be exempt from taxation pursuant to the formula in clause (i) of
this subparagraph, the full amount of total assessed valuation that does
not represent increased assessed valuation shall be applied in such
formula prior to the inclusion of any amount of increased assessed valu-
ation.
(iii) Where the real property is occupied in part for residential
purposes and in part for non-residential purposes, the assessed valu-
ation of the property shall be appropriately allocated between the resi-
dential and non-residential portions. In computing the total assessed
valuation per dwelling unit under this subparagraph, only the amount of
valuation so allocated to the residential portion shall be considered.
(iv) Commencing with the assessment roll for the year nineteen hundred
eighty-four, where there has been a change in the level of assessment
from the assessment roll of the prior year of properties receiving
exemptions under this section, the department of finance may petition
the state board to certify the percentage of such change for the
purposes of this section. In such petition, the department of finance
shall submit such information as the state board shall require in order
to certify the percentage of such change. The state board may also make
such a certification on its own motion. Upon receipt of such certif-
ication from the state board, the department of housing preservation and
development may modify the dollar values of total assessed valuation per
dwelling unit in clause (i) of this subparagraph to reflect the percent-
age change in the level of assessment as shown in such certification. As
used in this subparagraph, the term "change in the level of assessment"
means the net increase or decrease in the assessed valuation of proper-
ties in the assessing unit that received exemptions under this section
in the current year as compared to those that received exemptions under
this section in the prior year as a result of assessing such properties
at a higher or lower ratio of full value.
(v) (A) Notwithstanding the provisions of clause (i) of this subpara-
graph, the department of housing preservation and development may reduce
or remove the limitations on the exemption from taxation provided in
such clause with respect to a particular property undergoing alteration
or improvement, upon application of the property owner and a determi-
nation by such department that the increased benefit will increase the
number of dwelling units that will be affordable to persons of low and
moderate income, and the increased benefit is necessary to make econom-
ically viable units or improvement in the quality of dwelling units that
will be affordable to persons of low or moderate income.
(B) As used in this subparagraph, the term "persons of low or moderate
income" shall mean persons who would qualify for housing subsidies
pursuant to section two hundred thirty-five of the national housing act,
as amended, at one hundred thirty-five percent of the income limitations
provided therein.
(C) Upon receiving an application under this subparagraph in proper
form, the department of housing preservation and development shall imme-
A. 10030 198
diately submit it to the community board for the area in which the
project is located, which may, within forty-five days of receiving it
and after a public hearing, make recommendations to the department as to
the application. The department shall act on the application within
sixty days of receiving it from the property owner in proper form, but
not before expiration of the time for the community board to make its
recommendations, unless the board has acted sooner.
(d) The department of housing preservation and development may set
forth preliminarily the terms of a determination under subparagraph (b)
or (c) of this paragraph prior to the commencement of the conversion,
alteration or improvement. Any such determination shall take effect
after completion of the work in accordance with the terms of the appli-
cation made by the property owner.
(e) Any determination of the department of housing preservation and
development to increase an abatement under subparagraph (b) of this
paragraph, or to reduce or remove the exemption limitations under
subparagraph (c) of this paragraph shall state the basis for the deter-
mination and the data on which the determination was based. Such deter-
mination shall be published in the City Record for five consecutive days
after the determination is rendered.
e. Notwithstanding any provision of this section or any other section
of the code to the contrary, where such dwelling is in an area where a
plan of redevelopment, program of neighborhood improvement, housing
maintenance, demonstration rehabilitation or concentrated code enforce-
ment is being carried out, the rents subsequent to conversion, alter-
ation or improvement may exceed the maximum amount allowable pursuant to
chapter four of title twenty-six of the code of the preceding munici-
pality where necessity for the adjustment of such rents is certified by
the department of housing preservation and development.
f. Subject to the provisions of subdivision d of this section, the
department of housing preservation and development shall determine and
certify the reasonable cost of any such conversions, alterations or
improvements and eligibility for the benefits of this section and for
that purpose may adopt rules and regulations, administer oaths to and
take the testimony of any person, including but not limited to the owner
of such property, may issue subpoenas requiring the attendance of such
persons and the production of such bills, books, papers or other docu-
ments as it shall deem necessary, may make preliminary estimates of the
maximum reasonable cost of such conversions, alterations or improve-
ments, may establish maximum allowable costs of specified units,
fixtures or work in such conversions, alterations or improvements, and
may require the submission of plans and specifications of such conver-
sions, alterations or improvements, and may require the submission of
plans and specifications of such conversions, alterations or improve-
ments before the start thereof. Applications for certification shall
include all bills and other documents showing the cost of construction
or such other evidence of such cost as shall be satisfactory to the
department of housing preservation and development, including, without
limitation, certification of cost by a certified public accountant in
accordance with generally accepted accounting principles. Applications
for certification for a building eligible for benefits pursuant to para-
graph three of subdivision d of this section, for alterations or
improvements completed more than three years after its conversion to
cooperative or condominium ownership, shall include such documentation
of the sale price of dwelling units or stock allocated to such dwelling
units as may be required by the department of housing preservation and
A. 10030 199
development, including but not limited to certification of sales price
by a certified public accountant. In addition, such applications shall
contain the consent of the applicant to allow the department of housing
preservation and development access to records, including but not limit-
ed to other tax records, as the department may deem appropriate to
enforce such conditions of eligibility. Applications for certification
filed on or after January first, nineteen hundred seventy-nine pursuant
to paragraphs one through six and paragraph eight of subdivision b of
this section shall be made after completion and within forty-eight
months following the start of construction of the conversion, alteration
or improvement, except that applications for certification for alter-
ations or improvements undertaken by a housing development fund company
organized pursuant to article eleven of the private housing finance law,
which are carried out with the substantial assistance of grants, loans
or subsidies from any federal, state or local governmental agency or
instrumentality or which are carried out in a property transferred from
the city of New York or city of Staten Island shall be made after
completion and within seventy-two months following the start of the
construction of the alteration or improvement. Provided, however, the
department of housing preservation and development is empowered to grant
an extension of the period for application for any project carried out
with the substantial assistance of loans, grants or subsidies from any
federal, state or local governmental agency or instrumentality, if such
application is made within seventy-two months from commencement of
construction. Applications for certification pursuant to paragraph seven
of subdivision b of this section shall be filed within twelve months of
the date of completion as provided by such subdivision.
g. To the end that conversions, alterations or improvements in such
property shall interfere as little as practicable with the clearance,
rehabilitation or rebuilding of sub-standard and insanitary areas and
shall be confined to buildings and structures which are structurally
sound and comply with applicable provisions of law, eligibility for the
benefits of this section shall be restricted to such buildings and
structures which the department of housing preservation and development
shall certify:
(1) to be structurally sound and to comply with applicable provisions
of law, as determined by the department of buildings, which certif-
ication shall be evidenced by a certificate describing the property
involved;
(2) if in an area for which a final plan of clearance, replanning,
reconstruction, rehabilitation, or redevelopment has been approved
pursuant to article fifteen of the general municipal law, or if in an
area for which an urban renewal plan or tests, studies or demonstrations
have been approved pursuant to article fifteen of the general municipal
law, to be improved in conformity with such replanning, reconstruction,
rehabilitation, redevelopment, tests, studies, demonstrations or plan;
and
(3) if in an area where a program of local neighborhood improvement or
housing maintenance is being carried out, to be in conformity with such
program.
h. Application forms for the benefits of this section shall be filed
with the department of finance within the time periods to be established
by rules and regulations promulgated by the department of housing pres-
ervation and development pursuant to subdivision m of this section. The
department of finance shall certify the amount of taxes to be abated,
pursuant to the certification of the department of housing preservation
A. 10030 200
and development as herein provided. No such application shall be
accepted unless accompanied by a copy of the certificate of the depart-
ment of housing preservation and development both as to reasonable cost
and as to eligibility as provided in subdivision f of this section.
i. The benefits of this section shall not apply:
(1) except as provided in subdivision d of this section, to any exist-
ing dwelling which is not subject to the provisions of the emergency
housing rent control law or to the city rent and rehabilitation law or
to the city rent stabilization law or to the private housing finance law
or to any federal law providing for supervision or regulation by the
United States department of housing and urban development;
(2) to any private dwelling, notwithstanding any other provision of
this section, unless it is in an area where a plan of redevelopment or
program of neighborhood improvement, housing maintenance, demonstration
rehabilitation or concentrated code enforcement is being carried out and
the department of housing preservation and development finds that the
conversion, alteration or improvement is in conformity with such plan of
redevelopment, or program of neighborhood improvement, housing mainte-
nance, demonstration rehabilitation or concentrated code enforcement;
provided that, however, for the purposes of this section, a class A
multiple dwelling may be deemed to include any garden-type maisonette
dwelling project consisting of a series of dwelling units which together
and in their aggregate were arranged or designed to provide three or
more apartments and are provided as a group collectively with all essen-
tial services such as, but not limited to, water supply, house sewers
and heat, and which are in existence and operated as a unit under single
ownership on the date upon which an application for the benefits of this
section is received by the department of housing preservation and devel-
opment, even though certificates of occupancy were issued for portions
thereof as private dwellings;
(3) to any property receiving tax exemption or abatement concurrently
for rehabilitation or new construction under any other provision of New
York state, city of New York or city of Staten Island law with the
exception of any alteration or improvement to property receiving such
tax exemption or abatement under the provisions of the private housing
finance law, provided, however, that the benefits of this section shall
not apply to any alterations or improvements done in connection with the
refinancing, pursuant to section 223f of the national housing act, as
amended, of a housing project organized pursuant to article two and
article four of the private housing finance law;
(4) to any multiple dwelling for ordinary repairs and normal replace-
ment of maintenance items, as provided in paragraph one of subdivision
a, hereof in the event that the dwelling thereof is receiving the bene-
fits of this section for other ordinary repairs and normal replacement
of maintenance items as of the December thirty-first preceding the date
of application;
(5) to the conversion of any building or structure, or portion there-
of:
(i) which is located in the city of Staten Island where residential
conversion as of right is not permitted by the zoning resolution;
(ii) where such benefits are eliminated by regulations to be promul-
gated by the department of housing preservation and development pursuant
to subdivision m of this section, unless, in the case of a building or
structure in Richmond county, construction actually commenced prior to
October first, nineteen hundred eighty-three, pursuant to an alteration
permit. A copy of any proposed regulation pursuant to this paragraph
A. 10030 201
shall be transmitted to the city council not less than sixty days prior
to its publication in the City Record, pursuant to section eleven
hundred five of the charter of the preceding municipality as it existed
on the first of January, in the year next succeeding the effective date
of this section; and
(iii) provided that the provisions of this paragraph shall not apply
to conversions pursuant to paragraph seven of subdivision b of this
section.
(6) to any conversion of or alteration or improvement, commenced on or
after July first, nineteen hundred eighty-two, to any class B multiple
dwelling or class A multiple dwelling used in whole or in part for
single room occupancy, regardless of the status or use of the building
after the conversion, alteration or improvement unless such conversion,
alteration or improvement is carried out with the substantial assistance
of grants, loans or subsidies from any federal, state or local agency or
instrumentality.
(7) to any conversion of or alteration or improvement, commenced on or
after the effective date of this paragraph, to any property classified
under the zoning resolution as a non-profit institution with sleeping
accommodations, regardless of the status or use of the building after
the conversion, alteration or improvement unless such conversion, alter-
ation or improvement is carried out with the substantial assistance of
grants, loans or subsidies from any federal, state or local agency or
instrumentality.
j. Notwithstanding the provisions of the multiple dwelling law, or any
local law, ordinance, provisions of this code, rule or regulation, any
dwelling to which alterations and improvements are made pursuant to this
section and which did not require a certificate of occupancy on April
second, nineteen hundred forty-five, may be occupied lawfully after such
date upon the completion of such alterations and improvements without
such a certificate being obtained, provided, however, that such alter-
ations and improvements shall have been made in conformity with law and
the applicable provisions for fire protection required by articles six
and seven of the multiple dwelling law.
k. No owner of a dwelling to which the benefits of this section shall
be applied, nor any agent, employee, manager or officer of such owner
shall directly or indirectly deny to any person because of race, color,
creed, national origin, gender, sexual orientation, disability, marital
status, age, religion, alienage or citizenship status, or the use of,
participation in, or being eligible for a governmentally funded housing
assistance program, including, but not limited to, the section 8 housing
voucher program and the section 8 housing certificate program, 42 U.S.C.
1437 et seq., or the senior citizen rent increase exemption program,
pursuant to either chapter seven of title twenty-six of the code of the
preceding municipality or section 26-509 of such code, any of the dwell-
ing accommodations in such property or any of the privileges or services
incident to occupancy therein. The term "disability" as used in this
subdivision shall have the meaning set forth in section 8-102 of the
code of the preceding municipality. Nothing in this subdivision shall
restrict such consideration in the development of housing accommodations
for the purpose of providing for the special needs of a particular
group.
l. Any person who shall knowingly and willfully make any false state-
ment as to any material matter in any application for the benefits of
this section shall be guilty of an offense punishable by a fine of not
more than five hundred dollars or imprisonment for not more than ninety
A. 10030 202
days, or both. The commissioner of the department of housing preserva-
tion and development may reduce or revoke past and future exemption or
tax abatement authorized pursuant to this section if the application for
tax exemption or tax abatement contains a false statement or false
information as to a material matter or omits a material matter.
m. Each agency or department to which functions are assigned by this
section may adopt and promulgate rules and regulations for the effectua-
tion of the purpose of this section.
n. The department of housing preservation and development may require
a filing fee in an amount as provided by the rules and regulations
promulgated by the department of housing preservation and development
pursuant to subdivision m of this section.
o. Any tax abatement granted for a period of nine years to a multiple
dwelling aided by a loan provided by the city of New York prior to Janu-
ary first, nineteen hundred seventy-one, shall upon application therefor
be adjusted to extend for a period of up to twenty years, provided that
the total abatement before and after such adjustment shall not exceed
the total abatement to which such property was initially entitled under
this section.
p. This section is enacted pursuant to the provisions of section four
hundred eighty-nine of the real property tax law and subdivision two of
section four hundred five of the private housing finance law.
q. No application for the benefits of this section shall be accepted
by the department of finance if there are outstanding real estate taxes
or water and sewer charges or payments in lieu of taxes which were due
and owing as of the last day of the tax period preceding the date of
such filing with the department of finance, provided that an applicant
aided by article eight or article fifteen of the private housing finance
law shall have such application accepted by the department of finance if
there are no outstanding real estate taxes or water and sewer charges
due and owing as of the last day of the tax period preceding commence-
ment of construction.
r. In the event that any building or structure receiving the benefits
of this section shall become operated exclusively for commercial, hotel
or transient hotel use, the tax commission shall withdraw benefits
granted herein prospectively.
s. The benefits of this section shall not apply to alterations or
improvements to existing dwellings in existence on December thirty-
first, nineteen hundred seventy-five where (i) such alterations or
improvements were completed on or before December thirty-first, nineteen
hundred seventy-five, and (ii) no dwelling units thereof on December
thirty-first, nineteen hundred seventy-five had rentals which were
subject to control by the city rent agency pursuant to chapter four of
title twenty-six of the code of the preceding municipality. This subdi-
vision shall not apply to alterations or improvements to any building or
structure which is benefitted by mortgage insurance pursuant to section
two hundred thirteen of the national housing act for applications filed
prior to January first, nineteen hundred seventy-nine.
t. Notwithstanding any law to the contrary, the owner of any building
or structure eligible for any of the benefits of this section which is
converted to a class A multiple dwelling, completed, or substantially
rehabilitated on or after January one, nineteen hundred seventy-four,
shall register the initial rent for each dwelling unit in such building
or structure with the New York state division of housing and community
renewal. After such registration, the rents of such dwelling units shall
be fully subject to regulations under chapter four of title twenty-six
A. 10030 203
of the code of the preceding municipality so long as the benefits of
this section are in effect or for such longer period as may be provided
by law.
u. Any tax exemption or tax abatement authorized pursuant to this
section may be revoked retroactively by the commissioner of department
of housing preservation and development or the department of finance at
any time during the authorized term of such tax exemption or tax abate-
ment if real estate taxes or water and sewer charges due to the city of
New York or city of Staten Island remain unpaid for one year after the
same are due and payable. In no event shall revocation be effective
prior to the date such taxes or charges were first due and payable.
v. Where alterations, improvements, or conversions include or benefit
that part of a building which is not occupied for dwelling purposes but
is occupied by stores or otherwise used for commercial purposes or
community facilities, the increase in assessed valuation and the cost of
the alteration shall be apportioned so that the benefits of this title
shall not be provided for alterations, improvements or conversions made
for other than dwelling purposes.
w. If any provision of this section or its application to any person
shall be held invalid, the remainder of this section and the applicabil-
ity of its provisions to other persons or circumstances shall not be
affected thereby.
x. Notwithstanding any provision of this section, no benefit pursuant
to paragraph four of subdivision b of this section shall be granted for
work commenced after January first, nineteen hundred eighty, unless the
applicant establishes that the department of housing preservation and
development and tenants of such class A multiple dwelling were given
notice of (i) the proposed work prior to commencement of such work, (ii)
the identity of the owner's representative, and (iii) the tenants'
rights under applicable law with respect to such work, provided that, in
the case of a loan program supervised by such department, notice to the
department shall be unnecessary, and further provided that the depart-
ment may itself provide the required notice to the tenants.
y. Applicants for benefits under the provisions of this section shall
file with the department of finance a form supplied by said department
which (i) states an intention to file for benefits under the provisions
of this section, (ii) describes the work for which tax benefits will be
claimed and (iii) estimates the cost of such work which will be eligible
for benefits. Such form shall be filed prior to the commencement of such
work. If the scope of such work or the estimated cost thereof changes
materially, applicant shall file a revised statement. Applicants who
fail to comply with the requirements of this subdivision shall be
subject to a penalty not to exceed one hundred percent of the filing fee
otherwise payable pursuant to subdivision n of this section.
z. A former tenant or former subtenant of premises in a non-residen-
tial building which is the subject of an application for an alteration
permit for conversion to a class A multiple dwelling, prior to the
application for any tax exemption or abatement benefits for such build-
ing pursuant to this section, and as a condition to the grant thereof,
shall be entitled to a relocation award under the terms and conditions
set forth below:
(1) As used in this subdivision, the term "eligible tenant" shall mean
any former tenant or former subtenant who:
(i) leased and used the vacated premises to conduct a manufacturing,
warehousing, or wholesaling business for not less than two consecutive
years immediately prior to vacating;
A. 10030 204
(ii) vacated such premises on or after April first, nineteen hundred
eighty-one for any reason other than eviction for non-payment of rent;
(iii) vacated such premises (a) no earlier than twenty-four months
prior to the filing date of an application for such alteration permit
and (b) no later than the completion of the conversion as evidenced by
the issuance of a permanent certificate of occupancy for a class A
multiple dwelling;
(iv) either purchased or leased for a term of not less than eighteen
months other premises within the city of Staten Island with a floor area
not less than one-third of the floor area of the vacated premises;
(v) relocated their business to such other premises within one year of
vacating the vacated premises; and
(vi) paid all commercial rent or occupancy tax for the vacated prem-
ises. A subtenant shall be eligible to receive a relocation award
notwithstanding any lack of eligibility of its prime tenant;
(2) the relocation award shall not exceed the greater of (i) the
aggregate base rent which accrued and was paid by the eligible tenant
during the final twenty-four months of its occupancy of the vacated
premises or (ii) four dollars for each square foot that the eligible
tenant occupied in the vacated premises during the final twenty-four
months of its occupancy of the vacated premises. As used in this subdi-
vision, base rent shall be calculated in the same manner as base rent is
calculated for purposes of commercial rent or occupancy tax in the city
of Staten Island. However, the aggregate award payable to a prime tenant
and/or any subtenants of such prime tenant shall not exceed the amount
which would have been payable to the prime tenant had the prime tenant
been eligible for an award based on the entire floor area it leased from
the owner; and if such limitation applies, the awards shall be prorated
based upon the total floor area used and occupied by each eligible
tenant;
(3) the relocation award shall become due and payable to an eligible
tenant at the time the eligible tenant (i) either purchases or leases
other premises in accordance with paragraph one of this subdivision, and
(ii) certifies eligibility to, and demands payment of, the award from
the owner of the vacated building. If the relocation award is not paid
within thirty days of such certification and demand, interest shall
accrue on the relocation award from the date of the certification and
demand at the rate of twenty-four percent per annum;
(4) at any time after such certification and demand and prior to the
date of the filing of an application for tax exemption or abatement for
the vacated building pursuant to this section, an eligible tenant who
has not received a relocation award shall have a right to file a notice
of claim. Such notice of claim shall be filed with the county clerk of
the county and shall verify the claimant's name, its compliance with
eligibility requirements, the address of the vacated premises, the floor
area it occupied, the name of the prime tenant if the claimant is a
subtenant, and all the base rent that accrued and was paid by the claim-
ant during the final twenty-four months of its occupancy;
(5) a notice of claim, filed in accordance with paragraph four of this
subdivision, may be discharged by the filing of an undertaking with the
county clerk in an amount equal to the amount claimed and in accordance
with the procedures set forth in subdivision four of section nineteen of
the lien law, or by the payment into court of such amount in accordance
with the procedures set forth in section fifty-five of such law;
(6) no tax exemption or abatement shall be granted pursuant to this
section unless the department of housing preservation and development
A. 10030 205
receives an affidavit from the applicant for benefits of this section
which verifies that:
(i) the applicant has caused to be published a notice in a newspaper
of general circulation within the city of Staten Island, no later than
sixty days prior to filing of an application for tax exemption or abate-
ment pursuant to this section, which advises former tenants and subten-
ants of their rights pursuant to this subdivision; and
(ii) no notice of claim has been filed or all claims have been
released by the claimants, or secured in accordance with the provisions
of paragraph five of this subdivision, or discharged as an improper
claim by court order;
(7) the affidavit required pursuant to the provisions of paragraph six
of this subdivision shall be considered part of the application for
benefits pursuant to this section;
(8) if an eligible tenant has duly filed a notice of claim pursuant to
paragraph four of this subdivision and did not receive a relocation
award as provided herein, it may commence an action against any appli-
cant who filed a false affidavit pursuant to paragraph six of this
subdivision or any security posted by such applicant pursuant to para-
graph five of this subdivision, within three years of such filing. In
any action to enforce a claim pursuant to this subdivision, if the court
finds that the claimant has wilfully exaggerated the amount of the
claim, the claimant may be held liable in damages for an amount not to
exceed the proper relocation award. An eligible tenant in whose favor a
judgment is entered shall be entitled to costs and reasonable legal fees
and disbursements provided that such judgment is in excess of the amount
which the applicant or owner offered to pay the eligible tenant; and
(9) any lease or other rental agreement provision exempting, waiving,
releasing or discharging the obligation to pay a relocation award pursu-
ant to this subdivision shall be void as against public policy and whol-
ly unenforceable.
aa. Harassment. (1) The provisions of this subdivision apply to and
are additional requirements for claiming or receiving:
(a) any tax exemption under this section; or
(b) any tax abatement under this section where the certified reason-
able cost per dwelling unit of the conversion, alteration or improvement
(including the cost of any conversion, alteration or improvement for
which an abatement was approved within four years prior to commencement
of the conversion, alteration or improvement) exceeds seven thousand
five hundred dollars.
(2) The owner of the property shall file with the department of hous-
ing preservation and development, not less than thirty days before the
commencement of the conversion, alteration or improvement (hereinafter
referred to as the "cut-off date"), an affidavit, or, where any informa-
tion referred to in paragraph one of this subdivision changes prior to
applying for or claiming any benefit under this section, an amending
affidavit, setting forth the following information:
(a) every owner of record and owner of a substantial interest in the
property or entity owning the property or sponsoring the conversion,
alteration or improvement;
(b) a statement that none of such persons had, within the five years
prior to the cut-off date, been found to have harassed or unlawfully
evicted tenants by judgment or determination of a court or agency
(including a non-governmental agency having appropriate legal jurisdic-
tion) under the penal law, any state or local law regulating rents or
A. 10030 206
any state or local law relating to harassment of tenants or unlawful
eviction; and
(c) any change in the information required to be set forth.
(3) No conversion, alteration or improvement subject to this subdivi-
sion shall be eligible for tax exemption or tax abatement under this
section where:
(a) any affidavit required under this subdivision has not been filed;
(b) any such affidavit contains a willful misrepresentation or omis-
sion of any material fact; or
(c) any person referred to in subparagraph (a) of paragraph two of
this subdivision has been found to have harassed or unlawfully evicted
tenants as described in that paragraph, until and unless the finding is
reversed on appeal, provided that any such finding after the cut-off
date shall not apply to or affect any tax abatement or exemption for the
conversion, alteration or improvement covered by the affidavit.
(4) The department of housing preservation and development and the
department of finance shall maintain a list of affidavits as described
in paragraph two of this subdivision. Each agency shall review that list
with respect to each application or claim for benefits subject to this
subdivision.
(5) "Substantial interest" as used in subparagraph (a) of paragraph
two of this subdivision shall mean ownership of an interest of ten per
centum or more in the property or entity owning the property or sponsor-
ing the conversion, alteration or improvement.
(6) Where the conversion, alteration or improvement is commenced
before August first, nineteen hundred eighty-three, the cut-off date
shall be as set forth in this subdivision, but no affidavit shall be
required to be filed until thirty days after the effective date of this
subdivision.
bb. Notwithstanding any contrary provision of the private housing
finance law, the benefits of this section shall apply to any limited
profit housing company as provided in this section. Such multiple dwell-
ing, building or structure shall be eligible for benefits where at least
one building-wide improvement or alteration is part of the application
for benefits. Furthermore, to the extent that such alterations or
improvements are financed with grants, loans or subsidies from any
federal, state, or local agency or instrumentality, such multiple dwell-
ing, building or structure shall be eligible for benefits only if the
limited profit housing company has entered into a binding and irrev-
ocable agreement with the commissioner of housing of the state of New
York, the supervising agency, as such term is defined in section two of
the private housing finance law, the New York city housing development
corporation, or the New York state housing finance agency prohibiting
the dissolution or reconstitution of such limited profit housing company
pursuant to section thirty-five of the private housing finance law for
not less than fifteen years from the commencement of benefits. The
abatement of taxes on such property, including the land, shall not be an
amount greater than ninety per centum of the certified reasonable cost
of such alterations or improvements, as determined under regulations of
the department of housing preservation and development, nor greater than
eight and one-third percent of such certified reasonable cost in any
twelve-month period, nor be effective for more than twenty years. The
annual abatement of taxes in any twelve-month period shall in no event
exceed fifty percent of the amount of taxes payable in such twelve-month
period pursuant to the applicable exemption granted pursuant to article
two of the private housing finance law or other applicable laws or fifty
A. 10030 207
percent of payments required to be made in lieu of taxes in such twelve-
month period. Provided, however, the annual abatement of taxes for
alterations or improvements commenced prior to June first, nineteen
hundred eighty-six may not be applied to reduce the amount of taxes
payable or the amount of payments required to be made in lieu of taxes
in any twelve-month period to an amount less than the minimum amount of
taxes required to be paid pursuant to section thirty-three of the
private housing finance law.
cc. The commissioner of the department of housing preservation and
development and the commissioner of the department of finance shall
prepare an annual report which shall be submitted to the Mayor and the
council on or before the first of July next succeeding the year to which
the report pertains, regarding the exemptions and abatements granted
pursuant to this section and shall include, but not be limited to the
following information: (i) the amount of real property tax that would
have been paid in the aggregate by the owners of real property granted
an exemption or abatement if the property were fully taxable and the
amount of tax actually paid in the aggregate by such owners, (ii) the
geographic distribution of exemptions and abatements granted pursuant to
this section, and (iii) a distribution by type of eligible categories as
delineated in paragraphs one through nine of subdivision b of this
section.
dd. Partial waiver of rent adjustments attributable to major capital
improvements. (1) The provisions of this subdivision apply to and are
additional requirements for claiming or receiving any tax abatement
under this section, except as provided in paragraphs three and four of
this subdivision.
(2) The owner of the property shall file with the department of hous-
ing preservation and development, on the date any application for bene-
fits is made, a declaration stating that in consideration of any tax
abatement benefits which may be received pursuant to such application
for alterations or improvements constituting a major capital improve-
ment, such owner agrees to waive the collection of a portion of the
total annual amount of any rent adjustment attributable to such major
capital improvement which may be granted by the New York state division
of housing and community renewal pursuant to the rent stabilization code
or its successor statute for the city of Staten Island equal to one-half
of the total annual amount of the tax abatement benefits which the prop-
erty receives pursuant to such application with respect to such alter-
ations or improvements. Such waiver shall commence on the date of the
first collection of such rent adjustment, provided that, in the event
that such tax abatement benefits were received prior to such first
collection, the amount waived shall be increased to account for such tax
abatement benefits so received. Following the expiration of a tax abate-
ment for alterations or improvements constituting a major capital
improvement for which a rent adjustment has been granted by such divi-
sion, the owner may collect the full amount of annual rent permitted
pursuant to such rent adjustment. A copy of such declaration shall be
filed simultaneously with the New York state division of housing and
community renewal. Such declaration shall be binding upon such owner,
and his or her successors and assigns.
(3) The provisions of this subdivision shall not apply to substantial
rehabilitation of buildings vacant when alterations or improvements are
commenced or to buildings rehabilitated with the substantial assistance
of city, state or federal subsidies.
A. 10030 208
(4) The provisions of this subdivision shall apply only to alterations
and improvements commenced after the effective date of such subdivision.
§ 11-244 Tax exemption and abatement for rehabilitated buildings. a.
As used in this section, the following terms shall have the following
meanings:
1. "Eligible real property" shall mean:
(i) any class B multiple dwelling;
(ii) any class A multiple dwelling used for single room occupancy
pursuant to section two hundred forty-eight of the multiple dwelling law
which contains no more than twenty-five percent class A dwelling units
which contain lawful sanitary and kitchen facilities within the dwelling
unit, provided that in the case of a multiple dwelling containing ten
dwelling units or less, up to forty percent of the dwelling units may be
class A units; and
(iii) not-for-profit institutions with sleeping accommodations.
Notwithstanding the foregoing, eligible real property shall not
include college and school dormitories, club houses, or residences whose
occupancy is restricted to an institutional use such as housing intended
for use primarily or exclusively by the employees of a single company or
institution. A building is an eligible real property only if it quali-
fies as such after completion of the eligible improvements, but need not
have been an eligible real property prior to the eligible improvements.
2. "Eligible improvements" shall be limited to the following catego-
ries of work, provided further that such work shall be in conformity
with all applicable laws:
(i) replacement of a boiler or burner or installation of an entire new
heating system;
(ii) replacement or upgrading of electrical system;
(iii) replacement or upgrading of elevators;
(iv) installation or replacement or upgrading of the plumbing system,
including water main and risers;
(v) replacement or installation of walls, ceilings, floors or trim
where necessary;
(vi) replacement or upgrading of doors, installation of security
devices and systems;
(vii) installation, replacement or upgrading of smoke detectors, fire
alarms, fire escapes or sprinkler systems;
(viii) replacement or repair of roof, leaders and gutters;
(ix) replacement or installation of bathroom facilities;
(x) installation of wall and pipe insulation;
(xi) replacement or upgrading of street connections for water or sewer
services;
(xii) replacement or installation of windows, or installation of
window gates or guards;
(xiii) installation or replacement of boiler smoke stack;
(xiv) pointing, waterproofing and cleaning of entire building exterior
surface;
(xv) improvements designed to conserve the use of fuel, electricity or
other energy sources;
(xvi) work necessary to effect compliance with all applicable laws
including, but not limited to the multiple dwelling law, the city hous-
ing maintenance code or its successor statute for the city of Staten
Island and the building code; and
(xvii) improvements unique to congregate living facilities, as defined
by rules and regulations promulgated by the department of housing pres-
ervation and development.
A. 10030 209
3. "Existing dwelling" shall mean any eligible real property in exist-
ence prior to the commencement of eligible improvements, for which tax
exemption and abatement is claimed under the terms of this section and
for which a valuation appears on the annual record of assessed valuation
of the city for the fiscal year immediately preceding the commencement
of construction of such eligible improvements.
4. "Commencement of eligible improvement" shall mean the beginning of
any physical operation undertaken for the purpose of making eligible
improvements to eligible real property.
5. "Completion of eligible improvement" shall mean the conclusion or
termination of any physical operation referred to in the preceding para-
graph, to an extent or degree which renders an eligible property capable
of use for the purpose for which the improvements were intended.
6. "Permanent resident" shall mean a person who has resided in eligi-
ble real property for six months or more; has a lease or other rental
agreement for a term of six or more months; or has requested a lease
pursuant to the provisions of the rent stabilization code or its succes-
sor statute for the city of Staten Island for housing accommodations
located in hotels.
b. Any increase in the assessed valuation of eligible real property
shall be exempt from taxation for local purposes for a period of thir-
ty-two years to the extent such increase results from eligible improve-
ments, provided that:
(i) the eligible improvements are commenced after July first, nineteen
hundred eighty, and prior to the thirty-first of December in the year
next succeeding the effective date of this section, and are completed
within thirty-six months from commencement;
(ii) the department of housing preservation and development determines
and certifies the cost, qualification and eligibility of any improvement
for benefits of this section;
(iii) the exemption may commence no sooner than the July first follow-
ing the filing with the department of finance of a certification of
eligibility issued by the department of housing preservation and devel-
opment for benefits of this section; provided, however, that if the
rehabilitation is carried out with substantial government assistance as
part of a program for affordable housing the exemption may commence no
sooner than the July first following the commencement of construction of
eligible improvements;
(iv) immediately prior to, and during, the construction of eligible
improvements, not less than fifty percent of the dwelling units in such
eligible real property are occupied by permanent residents; provided
that such occupancy requirement shall not apply to a vacant, govern-
mentally owned multiple dwelling which had been vacant for not less than
two years prior to the commencement of construction of eligible improve-
ments, nor to a vacant multiple dwelling where the eligible improvements
are carried out with the substantial assistance of grants, loans or
subsidies from any federal, state or local agency or instrumentality or
any not-for-profit philanthropic organization one of whose primary
purposes is providing low or moderate income housing;
(v) no outstanding real estate taxes, water and sewer charges,
payments in lieu of taxes or other municipal charges are due and owing
as of the tax quarter immediately preceding the commencement of tax
exemption pursuant to this section; provided that an applicant aided
pursuant to the provisions of the private housing finance law shall have
such application accepted by the tax commission if there are no
outstanding real estate, water and sewer taxes due and owing as of the
A. 10030 210
last day of the tax quarter preceding commencement of construction of
eligible improvements;
(vi) except in the case of eligible real property which is receiving
or has received assistance pursuant to a governmental rent subsidy
program or which is owned by a not-for-profit corporation or by a wholly
owned subsidiary of a not-for-profit corporation and which is receiving
or has received assistance pursuant to a governmental loan subsidy
program, as defined by the rules and regulations promulgated by the
department of housing preservation and development, for the construction
of eligible improvements, the initial rent after completion of eligible
improvements, for ninety percent of the total number of dwelling units
occupied by permanent residents in a class A or class B multiple dwell-
ing other than apartments shall not exceed the greater of either the
amount of any governmental rental assistance received by an occupant or
seventy-five percent of the rent which is permitted to be charged for
zero-bedroom units on the moderate rehabilitation fair market rent sche-
dule as determined by the United States department of housing and urban
development for the housing assistance payments program under section
eight of the national housing act;
(vii) no person residing in eligible real property prior to or during
the construction of eligible improvements shall be required by the owner
to vacate the eligible real property solely in order to perform the
eligible improvements or any related work.
c. Eligible real property which qualifies for exemption from taxation
for local purposes for eligible improvements shall also be eligible for
an annual abatement of real property taxes in an amount not to exceed
twelve and one-half percent of the reasonable cost of eligible improve-
ments certified by the department of housing preservation and develop-
ment, which abatement may commence on the first day of the first tax
quarter following the filing with the department of finance of a certif-
ication of eligibility issued by the department of housing preservation
and development for benefits of this section; provided, however, that if
the rehabilitation is carried out with substantial government assistance
as part of a program for affordable housing the abatement may commence
no sooner than the first day of the first tax quarter following the
commencement of construction of eligible improvements, provided further
that:
(i) the annual abatement shall not exceed the amount of taxes other-
wise payable in the corresponding year;
(ii) the period during which such abatement is effective shall not
exceed twenty consecutive years from the date such abatement first
becomes effective; and
(iii) the total abatement shall not exceed the lesser of one hundred
fifty percent of the certified reasonable costs of eligible improvements
or the actual costs as determined by the department of housing preserva-
tion and development pursuant to its rules and regulations.
d. During the period of tax exemption or abatement pursuant to this
section, each of the following shall be a condition precedent to the
continuation of the exemption and/or abatement:
(i) compliance with all applicable provisions of law, including, but
not limited to the multiple dwelling law, the building code and the
housing maintenance code of the preceding municipality;
(ii) all dwelling units, except owner occupied units, shall be subject
to the emergency housing rent control law or the local housing rent
control act or the tenant protection act of nineteen hundred seventy-
four, or any local laws enacted pursuant thereto or the rent stabiliza-
A. 10030 211
tion law of nineteen hundred sixty-nine or their successor statutes for
the city of Staten Island; provided, however, that the department of
housing preservation and development may exempt from this requirement
dwelling units that are not occupied by permanent residents in those
buildings owned by a not-for-profit corporation and which are improved
with the aid of a rehabilitation loan from any government agency or
instrumentality or operated pursuant to a contract with a governmental
entity.
(iii) eligible real property receiving tax exemption or tax abatement
benefits under this section shall not receive tax exemption or tax
abatement for new construction or rehabilitation under any other
provision of law;
(iv) the eligible improvements shall not be used as the basis for any
application for rent increases and the owner shall file a statement to
such effect with the department of housing preservation and development
and with any appropriate rent regulatory agency, provided, however, that
rents of units improved with the aid of a rehabilitation loan from any
governmental agency or instrumentality may within the limitations estab-
lished by this section be increased pursuant to the rules and regu-
lations of the department of housing preservation and development; and
(v) a minimum of seventy-five percent of the dwelling units shall be
rental units occupied by permanent residents; provided, however that the
department of housing preservation and development may exempt from this
requirement those buildings improved with the aid of a rehabilitation
loan from any governmental agency or instrumentality or operated pursu-
ant to a contract with a governmental entity.
e. During the period of tax exemption or abatement pursuant to this
section, the owner shall submit an annual certification to the depart-
ment of housing preservation and development in the form prescribed by
such department. Failure to submit such certification in any given year
may result in the revocation of benefits. The certification shall
include the following:
(i) the total number of dwelling units within the eligible real prop-
erty and the total number of dwelling units occupied by permanent resi-
dents;
(ii) the number of dwelling units subject to the provisions of the
emergency housing rent control act, the emergency tenant protection act
of nineteen seventy-four or any local laws enacted pursuant thereto; the
emergency housing rent control law or the rent stabilization law of
nineteen hundred sixty-nine or their successor statutes applicable to
the city of Staten Island; and
(iii) all such other information required by the department of housing
preservation and development.
f. Any tax exemption or tax abatement authorized pursuant to this
section may be revoked or reduced by the department of housing preserva-
tion and development or by the department of finance at any time during
the authorized term of such tax exemption or tax abatement upon a find-
ing by either department that:
(i) the application for benefits pursuant to this section or the annu-
al certification required hereunder contains a false statement or false
information as to a material matter, or omits a material matter, in
which case the revocation or reduction may be retroactive to the
commencement of benefits pursuant to this section;
(ii) real estate taxes, water, sewer or other municipal charges, or
payments in lieu of said taxes or charges are, and have remained, due
and owing for more than one year, in which case the revocation or
A. 10030 212
reduction may be retroactive to the commencement of benefits pursuant to
this section, provided that in no event shall revocation be effective
prior to the date such taxes or charges were first due and payable; or
(iii) the eligible real property fails to comply with one or more of
the provisions or requirements of this section.
g. Application forms for the benefits of this section shall be filed
with the tax commission within the time periods to be established by
rules and regulations promulgated by the department of housing preserva-
tion and development, pursuant to subdivision i of this section. The tax
commission shall certify to the department of finance the amount of
taxes to be abated, pursuant to the certification of the department of
housing preservation and development as herein provided. No such appli-
cation shall be accepted unless accompanied by a copy of the certificate
of the department of housing preservation and development both as to
reasonable cost and as to eligibility as provided in subdivision b of
this section.
h. No owner of a dwelling to which the benefits of this section apply,
nor any agent, employee, manager or officer of such owner shall directly
or indirectly deny to any person because of race, color, creed, national
origin, sex, disability, marital status, age, religion, military status,
gender identity or expression or sexual orientation any of the dwelling
accommodations in such property or any of the privileges or services
incident to occupancy therein. The term "disability" as used in this
subdivision shall mean a physical, mental or medical impairment result-
ing from anatomical, physiological, or neurological conditions which
prevents the exercise of a normal bodily function or is demonstrable by
medically accepted clinical or laboratory diagnostic techniques. Nothing
in this subdivision shall restrict such consideration in the availabili-
ty of housing accommodations for the purpose of providing for the
special needs of a particular group.
i. The department of housing preservation and development shall deter-
mine and certify the reasonable cost of any such conversions, alter-
ations or improvements and eligibility for the benefits of this section
and for that purpose may adopt rules and regulations, administer oaths
to and take the testimony of any person, including, but not limited to
the owner of such property, may issue subpoenas requiring the attendance
of such persons and the production of such bills, books, papers or other
documents as it shall deem necessary, may make preliminary estimates of
the maximum reasonable cost of such conversions, alterations or improve-
ments, may establish maximum allowable costs of specified units,
fixtures or work in such conversions, alterations or improvements, and
may require the submission of plans and specifications of such conver-
sions, alterations or improvements before the start thereof. Applica-
tions for certification shall include all bills and other documents
showing the cost of construction or such other evidence of such cost as
shall be satisfactory to the department of housing preservation and
development, including, without limitation, certification of cost by a
certified public accountant in accordance with generally accepted
accounting principles. Each additional agency to which functions are
assigned by this section may adopt and promulgate rules and regulations
for the effectuation of the purposes of this section.
j. The department of housing preservation and development may require
a filing fee in an amount as provided by the rules and regulations
promulgated by the department of housing preservation and development
pursuant to subdivision i of this section.
A. 10030 213
k. Any person who shall knowingly and wilfully make any false state-
ments as to any material matter in any application for the benefits of
this section shall be guilty of an offense punishable by a fine of not
more than five hundred dollars or imprisonment for not more than ninety
days, or both.
l. If any provision of this section or its application to any person
shall be held invalid, the remainder of this section and the applicabil-
ity of its provisions to other persons or circumstances shall not be
affected thereby.
§ 11-245.1 Site eligibility limitations on benefits pursuant to
section four hundred twenty-one-a of the real property tax law.
(a) Where eligibility for benefits under section four hundred twenty-
one-a of the real property tax law is sought for any construction
commenced on or after November twenty-ninth, nineteen hundred eighty-
five and before May twelfth, two thousand on the basis that such
construction shall take place on land which, on the date thirty-six
months prior to the commencement of such construction, was improved with
a nonresidential building or buildings and was under-utilized, the
under-utilization of the land must have been such that each building or
buildings:
(1) contained no more than the permissible floor area ratio for
nonresidential buildings in the zoning district in question and a
floor area ratio which was twenty percent or less of the maximum
floor area ratio for residential buildings,
(2) had an assessed valuation equal to or less than twenty percent
of the assessed valuation of the land on which the building or
buildings were situated, or
(3) by reason of the configuration of the building, or substantial
structural defects not brought about by deferred maintenance prac-
tices or intentional conduct, could no longer be functionally or
economically utilized in the capacity in which it was formerly
utilized.
For purposes of this subdivision and subdivisions (a-1) through (a-4)
of this section, construction shall be deemed to have commenced on the
date immediately following the issuance by the department of buildings
of a new building permit for an entire new building (based upon archi-
tectural, plumbing and structural plans approved by such department) on
which the excavation and the construction of initial footings and foun-
dations commences in good faith, on vacant land and for the entire
project site, as certified by an architect or professional engineer
licensed in the state, provided that installation of footings and foun-
dations is similarly certified by such architect or engineer to have
been completed without undue delay.
(a-1) Except as provided in subdivision (a-2) of this section, where
eligibility for benefits under section four hundred twenty-one-a of the
real property tax law is sought for any construction commenced on or
after May twelfth, two thousand and before the effective date of subdi-
visions (a-3) and (a-4) of this section on the basis that such
construction shall take place on land which, on the date thirty-six
months prior to the commencement of such construction, was improved with
a nonresidential building or buildings and was under-utilized, the
under-utilization of the land must have been such that each building or
buildings:
(1) contained no more than the permissible floor area ratio for
nonresidential buildings in the zoning district in question and a
A. 10030 214
floor area ratio which was seventy-five percent or less of the maxi-
mum floor area ratio for residential buildings,
(2) had an assessed valuation equal to or less than seventy-five
percent of the assessed valuation of the land on which the building
or buildings were situated, or
(3) by reason of the configuration of the building, or substantial
structural defects not brought about by deferred maintenance prac-
tices or intentional conduct, could no longer be functionally or
economically utilized in the capacity in which it was formerly
utilized.
For purposes of this subdivision, construction shall be deemed to have
commenced as provided in subdivision (a) of this section.
(a-2) Where eligibility for benefits under section four hundred twen-
ty-one-a of the real property tax law is sought for any construction on
any tax lot now existing or hereafter created which is located south of
or adjacent to either side of one hundred tenth street in the borough of
Manhattan which construction commenced on or after May twelfth, two
thousand and before the effective date of subdivisions (a-3) and (a-4)
of this section on the basis that such construction shall take place on
land which, on the date thirty-six months prior to the commencement of
such construction, was improved with a nonresidential building or build-
ings and was under-utilized, the under-utilization of the land must have
been such that each building or buildings:
(1) contained no more than the permissible floor area ratio for
nonresidential buildings in the zoning district in question and a
floor area ratio which was fifty percent or less of the maximum
floor area ratio for residential buildings,
(2) had an assessed valuation equal to or less than fifty percent of
the assessed valuation of the land on which the building or build-
ings were situated, or
(3) by reason of the configuration of the building, or substantial
structural defects not brought about by deferred maintenance prac-
tices or intentional conduct, could no longer be functionally or
economically utilized in the capacity in which it was formerly
utilized.
For purposes of this subdivision, construction shall be deemed to have
commenced as provided in subdivision (a) of this section.
(a-3) Except as provided in subdivision (a-4) of this section, where
eligibility for benefits under section four hundred twenty-one-a of the
real property tax law is sought for any construction commenced on or
after the effective date of this subdivision on the basis that such
construction shall take place on land which, on the date thirty-six
months prior to the commencement of such construction, was improved with
a nonresidential building or buildings and was under-utilized, the
under-utilization of the land must have been such that each building or
buildings:
(1) contained no more than the permissible floor area ratio for
nonresidential buildings in the zoning district in question and
either (i) had a floor area ratio which was seventy-five percent or
less of the maximum floor area ratio for residential buildings in
such zoning district, or (ii) if the land was not zoned to permit
residential use on the date thirty-six months prior to the commence-
ment of construction, had a floor area ratio which was seventy-five
percent or less of the floor area ratio of the residential building
which replaces such non-residential building,
A. 10030 215
(2) had an assessed valuation equal to or less than seventy-five
percent of the assessed valuation of the land on which the building
or buildings were situated, or
(3) by reason of the configuration of the building, or substantial
structural defects not brought about by deferred maintenance prac-
tices or intentional conduct, could no longer be functionally or
economically utilized in the capacity in which it was formerly
utilized.
For purposes of this subdivision, construction shall be deemed to have
commenced as provided in subdivision (a) of this section.
(a-4) Where eligibility for benefits under section four hundred twen-
ty-one-a of the real property tax law is sought for any construction on
any tax lot now existing or hereafter created which is located south of
or adjacent to either side of one hundred tenth street in the borough of
Manhattan which construction commenced on or after the effective date of
this subdivision on the basis that such construction shall take place on
land which, on the date thirty-six months prior to the commencement of
such construction, was improved with a nonresidential building or build-
ings and was under-utilized, the under-utilization of the land must have
been such that each building or buildings:
(1) contained no more than the permissible floor area ratio for
nonresidential buildings in the zoning district in question and
either (i) had a floor area ratio which was fifty percent or less of
the maximum floor area ratio for residential buildings in such
zoning district, or (ii) if the land was not zoned to permit resi-
dential use on the date thirty-six months prior to the commencement
of construction, had a floor area ratio which was fifty percent or
less of the floor area ratio of the residential building which
replaces such non-residential building,
(2) had an assessed valuation equal to or less than fifty percent of
the assessed valuation of the land on which the building or build-
ings were situated, or
(3) by reason of the configuration of the building, or substantial
structural defects not brought about by deferred maintenance prac-
tices or intentional conduct, could no longer be functionally or
economically utilized in the capacity in which it was formerly
utilized.
For purposes of this subdivision, construction shall be deemed to have
commenced as provided in subdivision (a) of this section.
(b) The department of housing preservation and development may promul-
gate rules and regulations for the effectuation of the purposes of this
section.
(c) The limitations on benefits contained in this section shall be in
addition to those contained in any other law or regulation.
§ 11-245.1-a Boundary review commission. (a) There shall be estab-
lished a boundary review commission consisting of eleven members,
including the commissioner of finance, the commissioner of housing pres-
ervation and development, the commissioner of buildings, the chairperson
of the department of city planning, the director of the office of
management and budget, the executive director of the board of standards
and appeals and five members chosen by the speaker of the council. The
appointees of the speaker of the council shall serve at the pleasure of
the speaker. The commission shall elect a chairperson from among its
members.
(b) The boundary review commission shall undertake a biennial review
of the tax benefit program established pursuant to section four hundred
A. 10030 216
twenty-one-a of the real property tax law to determine whether the areas
for which the tax benefits are restricted pursuant to those provisions
of the administrative code which relate to such program should be
revised in any manner.
(c) In conducting a review to determine whether geographic exclusion
zones restricting benefits provided pursuant to section four hundred
twenty-one-a of the real property tax law should be revised, the commis-
sion shall review measurers of housing activity and housing market
conditions throughout the city including (i) the amount of new develop-
ment; (ii) values in land sales, residential sales prices and rents;
(iii) trends in land sales, residential sales prices and rents and other
development trend data including land use trends, lot consolidation and
board of standards and appeals actions; (iv) development potential; (v)
relationship between volume of potential development and existing hous-
ing; and (vi) financial feasibility of development with and without the
benefits provided pursuant to section four hundred twenty-one-a of the
real property tax law.
(d) On or before December first of each even numbered year following
the effective date of this section, such commission shall submit a
report to the speaker of the council and the mayor on its deliberations
and shall include recommendations for revisions to such boundaries that
it deems appropriate or why no revisions were recommended, including the
methodology by which it applied the criteria in subdivision (c) of this
section to arrive at its recommendations, and all data used to make such
recommendations. Any recommendations shall be consistent with the
provisions of section four hundred twenty-one-a of the real property tax
law.
§ 11-245.1-b Limitations on benefits pursuant to section four hundred
twenty-one-a of the real property tax law. (a) As used in this section,
the following terms shall have the following meanings:
(1) "Residential tax lot" shall mean a tax lot that contains dwelling
units.
(2) "Non-residential tax lot" shall mean a tax lot that does not
contain any dwelling units.
(3) "Annual limit" shall mean sixty-five thousand dollars, which
amount shall be increased by three percent, compounded annually, on each
taxable status date following the first anniversary of the effective
date of the local law that added this section.
(4) "Certificate of occupancy" shall mean the first certificate of
occupancy covering all residential areas of the building on or contain-
ing a tax lot.
(5) "Unit count" shall mean (i) in the case of a residential tax lot
that does not contain any commercial, community facility or accessory
use space, the number of dwelling units in such tax lot, and (ii) in the
case of a residential tax lot that contains commercial, community facil-
ity or accessory use space, the number of dwelling units in such tax lot
plus one.
(6) "Exemption cap" shall mean the unit count multiplied by the annual
limit.
(b) The provisions of this section shall apply only to projects that
commence construction on or after the effective date of this section.
(c) No benefits under section four hundred twenty-one-a of the real
property tax law shall be conferred for any multiple dwelling containing
fewer than four dwelling units, as set forth in the certificate of occu-
pancy, unless the construction of such multiple dwelling is carried out
with substantial assistance of grants, loans or subsidies from any
A. 10030 217
federal, state or local agency or instrumentality where such assistance
is provided pursuant to a program for the development of affordable
housing.
(d) The portion of the assessed valuation of any residential tax lot
exempted from real property taxation in any year pursuant to section
four hundred twenty-one-a of the real property tax law shall not exceed
the exemption cap on or after the first taxable status date after the
building on or containing such tax lot receives its certificate of occu-
pancy unless, in accordance with a regulatory agreement with or approved
by the department of housing preservation and development that is appli-
cable to such tax lot, (1) the construction of such building is carried
out with substantial assistance of grants, loans or subsidies from any
federal, state or local agency or instrumentality and such assistance is
provided pursuant to a program for the development of affordable hous-
ing, or (2) the department of housing preservation and development has
imposed a requirement or has certified that twenty per cent of the units
be restricted income units. All such restricted income units must be
situated onsite. For the purposes of this section, "onsite" shall mean
that restricted income units shall be situated within the building or
buildings for which benefits pursuant to section four hundred twenty-
one-a of the real property tax law are being granted. A dwelling unit
that is located in two or more tax lots shall be ineligible to receive
any benefits under section four hundred twenty-one-a of the real proper-
ty tax law. The portion of the assessed valuation of all non-residential
tax lots in the building on or containing such non-residential tax lots
exempted from real property taxation in any year pursuant to section
four hundred twenty-one-a of the real property tax law shall not exceed
a cumulative total equal to the annual limit on or after the first taxa-
ble status date after the building on or containing such non-residential
tax lots receives its certificate of occupancy.
(e) A new multiple dwelling that is situated in (1) a neighborhood
preservation program area as determined by the department of housing
preservation and development as of June first, nineteen hundred eighty-
five, (2) a neighborhood preservation area as determined by the New York
city planning commission as of June first, nineteen hundred eighty-five,
(3) an area that was eligible for mortgage insurance provided by the
rehabilitation mortgage insurance corporation as of May first, nineteen
hundred ninety-two, or (4) an area receiving funding for a neighborhood
preservation project pursuant to the neighborhood reinvestment corpo-
ration act (42 U.S.C. §§ 8101 et seq.) as of June first, nineteen
hundred eighty-five, shall only be eligible for the benefits available
pursuant to subparagraph (iii) of paragraph (a) of subdivision two of
section four hundred twenty-one-a of the real property tax law if:
a. the construction is carried out with substantial assistance of
grants, loans or subsidies from any federal, state or local agency or
instrumentality and such assistance is provided pursuant to a program
for the development of affordable housing, or
b. the department of housing preservation and development has imposed
a requirement or has certified that twenty percent of the units be
restricted income units. All such restricted income units must be situ-
ated onsite.
(f) The department of housing preservation and development may promul-
gate rules and regulations to effectuate the purposes of this section.
(g) The limitations on eligibility for benefits contained in this
section shall be in addition to those contained in any other law, rule
or regulation.
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(h) Notwithstanding anything to the contrary contained herein, the
limitations on eligibility for benefits contained in this section shall
not apply to a covered project as defined in subparagraph (i) of para-
graph a of subdivision six of section four hundred twenty-one-a of the
real property tax law.
§ 11-245.2 Exemption for real property of certain water-works corpo-
rations. Real property owned by a water-works corporation subject to the
provisions of the public service law and used exclusively for the sale,
furnishing and distribution of water for domestic, commercial and public
purposes, shall not be taxable.
§ 11-245.3 Exemption for persons sixty-five years of age or over. 1.
Real property owned by one or more persons, each of whom is sixty-five
years of age or over, or real property owned by husband and wife or by
siblings, one of whom is sixty-five years of age or over, or real prop-
erty owned by one or more persons, some of whom qualify under this
section and section 11-245.4 of this part shall be exempt from taxes on
real estate to the extent of fifty per centum of the assessed valuation
thereof. For the purposes of this section, siblings shall mean a brother
or a sister, whether related through halfblood, whole blood or adoption.
2. Exemption from taxation for school purposes shall not be granted in
the case of real property where a child resides if such child attends a
public school of elementary or secondary education.
3. No exemption shall be granted:
(a) if the income of the owner or the combined income of the owners of
the property exceeds the sum of twenty-six thousand dollars beginning
July first, two thousand six, twenty-seven thousand dollars beginning
July first, two thousand seven, twenty-eight thousand dollars beginning
July first, two thousand eight, twenty-nine thousand dollars beginning
July first, two thousand nine, and fifty thousand dollars beginning July
first, two thousand seventeen for the income tax year immediately
preceding the date of making application for exemption. Income tax year
shall mean the twelve-month period for which the owner or owners filed a
federal personal income tax return, or if no such return is filed, the
calendar year. Where title is vested in either the husband or the wife,
their combined income may not exceed such sum, except where the husband
or wife, or ex-husband or ex-wife is absent from the property as
provided in subparagraph (ii) of paragraph (d) of this subdivision, then
only the income of the spouse or ex-spouse residing on the property
shall be considered and may not exceed such sum. Such income shall
include social security and retirement benefits, interest, dividends,
total gain from the sale or exchange of a capital asset which may be
offset by a loss from the sale or exchange of a capital asset in the
same income tax year, net rental income, salary or earnings, and net
income from self-employment, but shall not include gifts, inheritances,
a return of capital, payments made to individuals because of their
status as victims of Nazi persecution as defined in P.L. 103-286, monies
earned through employment in the federal foster grandparent program, and
veterans disability compensation as defined in title 38 of the United
States Code, and any such income shall be offset by all medical and
prescription drug expenses actually paid which were not reimbursed or
paid for by insurance. In computing net rental income and net income
from self-employment no depreciation deduction shall be allowed for the
exhaustion, wear and tear of real or personal property held for the
production of income.
(b) unless the title of the property shall have been vested in the
owner or one of the owners of the property for at least twelve consec-
A. 10030 219
utive months prior to the date of making application for exemption,
provided, however, that in the event of the death of either husband or
wife in whose name title of the property shall have been vested at the
time of death and then becomes vested solely in the survivor by virtue
of devise by or descent from the deceased husband or wife, the time of
ownership of the property by the deceased husband or wife shall be
deemed also a time of ownership by the survivor and such ownership shall
be deemed continuous for the purposes of computing such period of twelve
consecutive months, and provided further, that in the event of a trans-
fer by either husband or wife to the other spouse of all or part of the
title to the property, the time of ownership of the property by the
transferer spouse shall be deemed also a time of ownership by the trans-
feree spouse and such ownership shall be deemed continuous for the
purposes of computing such period of twelve consecutive months, and
provided further, that where property of the owner or owners has been
acquired to replace property formerly owned by such owner or owners and
taken by eminent domain or other involuntary proceeding, except a tax
sale, and where a residence is sold and replaced with another within one
year and both are within the state, the period of ownership of the
former property shall be combined with the period of ownership of the
property for which application is made for exemption and such periods of
ownership shall be deemed to be consecutive for purposes of this
section. Where the owner or owners transfer title to property which as
of the date of transfer was exempt from taxation under the provisions of
this section, the reacquisition of title by such owner or owners within
nine months of the date of transfer shall be deemed to satisfy the
requirement of this paragraph that the title of the property shall have
been vested in the owner or one of the owners for such period of twelve
consecutive months. Where, upon or subsequent to the death of an owner
or owners, title to property which as of the date of such death was
exempt from taxation under such provisions, becomes vested, by virtue of
devise or descent from the deceased owner or owners, or by transfer by
any other means within nine months after such death, solely in a person
or persons who, at the time of such death, maintained such property as a
primary residence, the requirement of this paragraph that the title of
the property shall have been vested in the owner or one of the owners
for such period of twelve consecutive months shall be deemed satisfied;
(c) unless the property is used exclusively for residential purposes,
provided, however, that in the event any portion of such property is not
so used exclusively for residential purposes but is used for other
purposes, such portion shall be subject to taxation and the remaining
portion only shall be entitled to the exemption provided by this
section;
(d) unless the property is the legal residence of and is occupied in
whole or in part by the owner or by all of the owners of the property;
except where, (i) an owner is absent from the residence while receiving
health-related care as an inpatient of a residential health care facili-
ty, as defined in section twenty-eight hundred one of the public health
law, provided that any income accruing to that person shall be income
only to the extent that it exceeds the amount paid by such owner,
spouse, or co-owner for care in the facility, and provided further, that
during such confinement such property is not occupied by other than the
spouse or co-owner of such owner; or, (ii) the real property is owned by
a husband and/or wife, or an ex-husband and/or an ex-wife, and either is
absent from the residence due to divorce, legal separation or abandon-
ment and all other provisions of this section are met provided that
A. 10030 220
where an exemption was previously granted when both resided on the prop-
erty, then the person remaining on the real property shall be sixty-two
years of age or over.
4. Application for such exemption must be made by the owner, or all of
the owners of the property, on forms prescribed by the state board to be
furnished by the department of finance and shall furnish the information
and must be executed in the manner required or prescribed in such form
and shall be filed in the department of finance in the borough in which
the real property is located between the fifteenth day of January and
the fifteenth day of March. Notwithstanding any other provision of law,
any person otherwise qualifying under this section shall not be denied
the exemption under this section if he or she becomes sixty-five years
of age after the taxable status date and on or before December thirty-
first of the same year.
5. At least sixty days prior to the fifteenth day of January the
department of finance shall mail to each person who was granted
exemption pursuant to this section on the latest completed assessment
roll an application form and a notice that such application must be
filed between the fifteenth day of January and the fifteenth day of
March every two years from the year in which such exemption was granted
and be approved in order for the exemption to be granted. The department
of finance shall, within three days of the completion and filing of the
tentative assessment roll, notify by mail any applicant who has included
with his application at least one self-addressed, prepaid envelope, of
the approval or denial of the application; provided, however, where an
applicant has included two such envelopes, the department of finance
shall, upon the filing of the application, send by mail, notice of
receipt of that application. Where an applicant is entitled to notice of
denial provided herein, such notice shall state the reasons for such
denial and shall further state that such determination is reviewable in
a manner provided by law. Failure to mail any such application form or
notices or the failure of such person to receive any or all of the same
shall not prevent the levy, collection and enforcement of the payment of
the taxes on property owned by such person.
6. Any conviction of having made any willful false statement in the
application for such exemption shall be punishable by a fine of not more
than one hundred dollars and shall disqualify the applicant or appli-
cants from further exemption for a period of five years.
7. Notwithstanding the maximum income exemption eligibility level
provided in subdivision three of this section, an exemption, subject to
all other provisions of this section, shall be granted as indicated in
the following schedule:
Annual Income Percentage Assessed Valuation
as of July 1, 2006 Exempt From Taxation
More than $26,000 but less than $27,000 45 per centum
$27,000 or more but less than $28,000 40 per centum
$28,000 or more but less than $29,000 35 per centum
$29,000 or more but less than $29,900 30 per centum
$29,900 or more but less than $30,800 25 per centum
$30,800 or more but less than $31,700 20 per centum
$31,700 or more but less than $32,600 15 per centum
$32,600 or more but less than $33,500 10 per centum
$33,500 or more but less than $34,400 5 per centum
A. 10030 221
Percentage Assessed Valuation
Annual Income as of July 1, 2007 Exempt From Taxation
More than $27,000 but less than $28,000 45 per centum
$28,000 or more but less than $29,000 40 per centum
$29,000 or more but less than $30,000 35 per centum
$30,000 or more but less than $30,900 30 per centum
$30,900 or more but less than $31,800 25 per centum
$31,800 or more but less than $32,700 20 per centum
$32,700 or more but less than $33,600 15 per centum
$33,600 or more but less than $34,500 10 per centum
$34,500 or more but less than $35,400 5 per centum
Percentage Assessed Valuation
Annual Income as of July 1, 2008 Exempt From Taxation
More than $28,000 but less than $29,000 45 per centum
$29,000 or more but less than $30,000 40 per centum
$30,000 or more but less than $31,000 35 per centum
$31,000 or more but less than $31,900 30 per centum
$31,900 or more but less than $32,800 25 per centum
$32,800 or more but less than $33,700 20 per centum
$33,700 or more but less than $34,600 15 per centum
$34,600 or more but less than $35,500 10 per centum
$35,500 or more but less than $36,400 5 per centum
Percentage Assessed Valuation
Annual Income as of July 1, 2009 Exempt From Taxation
More than $29,000 but less than $30,000 45 per centum
$30,000 or more but less than $31,000 40 per centum
$31,000 or more but less than $32,000 35 per centum
$32,000 or more but less than $32,900 30 per centum
$32,900 or more but less than $33,800 25 per centum
$33,800 or more but less than $34,700 20 per centum
$34,700 or more but less than $35,600 15 per centum
$35,600 or more but less than $36,500 10 per centum
$36,500 or more but less than $37,400 5 per centum
Annual Income as of July 1, 2017 Percentage Assessed Valuation
Exempt From Taxation
More than $50,000 but less than $51,000 45 per centum
$51,000 or more but less than $52,000 40 per centum
$52,000 or more but less than $53,000 35 per centum
$53,000 or more but less than $53,900 30 per centum
$53,900 or more but less than $54,800 25 per centum
$54,800 or more but less than $55,700 20 per centum
$55,700 or more but less than $56,600 15 per centum
$56,600 or more but less than $57,500 10 per centum
$57,500 or more but less than $58,400 5 per centum
8. Any exemption provided by this section shall be computed after all
partial exemptions allowed by law have been subtracted from the total
amount assessed.
A. 10030 222
9. Exemption from taxation as provided in this section on real proper-
ty owned by husband and wife, one of whom is sixty-five years of age or
older, once granted, shall not be rescinded solely because of the death
of the older spouse so long as the surviving spouse is at least sixty-
two years of age.
10. a. For the purposes of this section, title to that portion of real
property owned by a cooperative apartment corporation in which a
tenant-stockholder of such corporation resides and which is represented
by his or her share or shares of stock in such corporation as determined
by its or their proportional relationship to the total outstanding stock
of the corporation, including that owned by the corporation, shall be
deemed to be vested in such tenant-stockholder. That proportion of the
assessment of real property owned by a cooperative apartment corpo-
ration, determined by the relationship of such real property vested in
such tenant-stockholder to such entire parcel and the buildings thereon
owned by such cooperative apartment corporation in which such tenant-
stockholder resides, shall be subject to exemption from taxation pursu-
ant to this section and any exemption so granted shall be credited by
the department of finance against the assessed valuation of such real
property; the reduction in real property taxes realized thereby shall be
credited by the cooperative apartment corporation against the amount of
such taxes otherwise payable by or chargeable to such tenant-stockhold-
er. Each cooperative apartment corporation shall notify each tenant-
stockholder in residence thereof of such provisions as are set forth in
this section.
b. Notwithstanding any other provision of law, a tenant-stockholder
who resides in a dwelling which is subject to the provisions of either
article two, four, five or eleven of the private housing finance law and
who is eligible for a rent increase exemption pursuant to chapter seven
of title twenty-six of the code of the preceding municipality shall not
be eligible for an exemption pursuant to this subdivision. Notwithstand-
ing any other provision of law, a tenant-stockholder who resides in a
dwelling which is subject to the provisions of either article two, four,
five or eleven of the private housing finance law and who is not eligi-
ble for a rent increase exemption pursuant to chapter seven of title
twenty-six of this code but who meets the requirements for eligibility
for an exemption pursuant to this section shall be eligible for such
exemption provided that such exemption shall be in an amount determined
by multiplying the exemption otherwise allowable pursuant to this
section by a fraction having a numerator equal to the amount of real
property taxes or payments in lieu of taxes that were paid with respect
to such dwelling and a denominator equal to the full amount of real
property taxes that would have been owed with respect to such dwelling
had it not been granted an exemption or abatement of real property taxes
pursuant to any provision of law, provided, however, that any reduction
in real property taxes received with respect to such dwelling pursuant
to chapter seven of title twenty-six of this code or pursuant to this
section shall not be considered in calculating such numerator. Any
tenant-stockholder who resides in a dwelling which was or continues to
be subject to a mortgage insured or initially insured by the federal
government pursuant to section two hundred thirteen of the national
housing act, as amended, and who is eligible for both a rent increase
exemption pursuant to chapter seven of title twenty-six of this code and
an exemption pursuant to this subdivision, may apply for and receive
either a rent increase exemption pursuant to such chapter or an
exemption pursuant to this subdivision, but not both.
A. 10030 223
11. Exemption Option. Notwithstanding any provision of this part to
the contrary, real property owned by one or more persons where one of
such owners qualifies for a real property tax exemption pursuant to this
section or section 11-245.4 of this part, and another of such owners
qualifies for a different tax exemption pursuant to such sections of
this part as authorized by state law, such owners shall have the option
of choosing the one exemption which is most beneficial to such owners.
Such owners shall not be prohibited from taking one such exemption sole-
ly on the basis that such owners qualify for more than one exemption and
therefore are not eligible for any exemptions.
§ 11-245.4 Exemption for persons with disabilities. 1. (a) Real prop-
erty owned by one or more persons with disabilities, or real property
owned by a husband, wife, or both, or by siblings, at least one of whom
has a disability, or real property owned by one or more persons, some of
whom qualify under this section and section 11-245.3 of this part, and
whose income, as hereafter defined, is limited by reason of such disa-
bility, shall be exempt from taxes on real estate to the extent of fifty
per centum of the assessed valuation thereof as hereinafter provided.
For purposes of this section, sibling shall mean a brother or a sister,
whether related through half blood, whole blood or adoption.
(b) For purposes of this section, a person with a disability is one
who has a physical or mental impairment, not due to current use of alco-
hol or illegal drug use, which substantially limits such person's abili-
ty to engage in one or more major life activities, such as caring for
one's self, performing manual tasks, walking, seeing, hearing, speaking,
breathing, learning and working, and who (i) is certified to receive
social security disability insurance (SSDI) or supplemental security
income (SSI) benefits under the federal social security act, or (ii) is
certified to receive railroad retirement disability benefits under the
federal railroad retirement act, or (iii) has received a certificate
from the state commission for the blind and visually handicapped stating
that such person is legally blind, or (iv) is certified to receive a
United States postal service disability pension. An award letter from
the social security administration or the railroad retirement board or a
certificate from the state commission for the blind and visually hand-
icapped or an award letter from the United States postal service shall
be submitted as proof of disability.
2. Exemption from taxation for school purposes shall not be granted in
the case of real property where a child resides if such child attends a
public school of elementary or secondary education.
3. No exemption shall be granted:
(a) if the income of the owner or the combined income of the owners of
the property for the income tax year immediately preceding the date of
making application for exemption exceeds the sum of twenty-six thousand
dollars beginning July first, two thousand six, twenty-seven thousand
dollars beginning July first, two thousand seven, twenty-eight thousand
dollars beginning July first, two thousand eight, twenty-nine thousand
dollars beginning July first, two thousand nine, and fifty thousand
dollars beginning July first, two thousand seventeen. Income tax year
shall mean the twelve-month period for which the owner or owners filed a
federal personal income tax return, or if no such return is filed, the
calendar year. Where title is vested in either the husband or the wife,
their combined income may not exceed such sum, except where the husband
or wife, or ex-husband or ex-wife is absent from the property due to
divorce, legal separation or abandonment, then only the income of the
spouse or ex-spouse residing on the property shall be considered and may
A. 10030 224
not exceed such sum. Such income shall include social security and
retirement benefits, interest, dividends, total gain from the sale or
exchange of a capital asset which may be offset by a loss from the sale
or exchange of a capital asset in the same income tax year, net rental
income, salary or earnings, and net income from self-employment, but
shall not include a return of capital, gifts, inheritances or monies
earned through employment in the federal foster grandparent program and
any such income shall be offset by all medical and prescription drug
expenses actually paid which were not reimbursed or paid for by insur-
ance. In computing net rental income and net income from self-employment
no depreciation deduction shall be allowed for the exhaustion, wear and
tear of real or personal property held for the production of income;
(b) unless the property is used exclusively for residential purposes,
provided, however, that in the event any portion of such property is not
so used exclusively for residential purposes but is used for other
purposes, such portion shall be subject to taxation and the remaining
portion only shall be entitled to the exemption provided by this
section;
(c) unless the real property is the legal residence of and is occupied
in whole or in part by the disabled person; except where the disabled
person is absent from the residence while receiving health-related care
as an inpatient of a residential health care facility, as defined in
section twenty-eight hundred one of the public health law, provided that
any income accruing to that person shall be considered income for
purposes of this section only to the extent that it exceeds the amount
paid by such person or spouse or sibling of such person for care in the
facility.
4. Application for such exemption must be made annually by the owner,
or all of the owners of the property, on forms prescribed by the state
board, and shall be filed with the department of finance on or before
the fifteenth day of March of the appropriate year; provided, however,
proof of a permanent disability need be submitted only in the year
exemption pursuant to this section is first sought or the disability is
first determined to be permanent.
5. At least sixty days prior to the fifteenth day of March of the
appropriate year, the department of finance shall mail to each person
who was granted exemption pursuant to this section on the latest
completed assessment roll an application form and a notice that such
application must be filed on or before the fifteenth day of March and be
approved in order for the exemption to continue to be granted. Failure
to mail such application form or the failure of such person to receive
the same shall not prevent the levy, collection and enforcement of the
payment of the taxes on property owned by such person.
6. Notwithstanding the maximum income exemption eligibility level
provided in subdivision three of this section, an exemption, subject to
all other provisions of this section, shall be granted as indicated in
the following schedule:
Percentage Assessed Valuation
Annual Income as of July 1, 2006 Exempt From Taxation
More than $26,000 but less than $27,000 45 per centum
$27,000 or more but less than $28,000 40 per centum
$28,000 or more but less than $29,000 35 per centum
$29,000 or more but less than $29,900 30 per centum
$29,900 or more but less than $30,800 25 per centum
A. 10030 225
$30,800 or more but less than $31,700 20 per centum
$31,700 or more but less than $32,600 15 per centum
$32,600 or more but less than $33,500 10 per centum
$33,500 or more but less than $34,400 5 per centum
Percentage Assessed Valuation
Annual Income as of July 1, 2007 Exempt From Taxation
More than $27,000 but less than $28,000 45 per centum
$28,000 or more but less than $29,000 40 per centum
$29,000 or more but less than $30,000 35 per centum
$30,000 or more but less than $30,900 30 per centum
$30,900 or more but less than $31,800 25 per centum
$31,800 or more but less than $32,700 20 per centum
$32,700 or more but less than $33,600 15 per centum
$33,600 or more but less than $34,500 10 per centum
$34,500 or more but less than $35,400 5 per centum
Percentage Assessed Valuation
Annual Income as of July 1, 2008 Exempt From Taxation
More than $28,000 but less than $29,000 45 per centum
$29,000 or more but less than $30,000 40 per centum
$30,000 or more but less than $31,000 35 per centum
$31,000 or more but less than $31,900 30 per centum
$31,900 or more but less than $32,800 25 per centum
$32,800 or more but less than $33,700 20 per centum
$33,700 or more but less than $34,600 15 per centum
$34,600 or more but less than $35,500 10 per centum
$35,500 or more but less than $36,400 5 per centum
Percentage Assessed Valuation
Annual Income as of July 1, 2009 Exempt From Taxation
More than $29,000 but less than $30,000 45 per centum
$30,000 or more but less than $31,000 40 per centum
$31,000 or more but less than $32,000 35 per centum
$32,000 or more but less than $32,900 30 per centum
$32,900 or more but less than $33,800 25 per centum
$33,800 or more but less than $34,700 20 per centum
$34,700 or more but less than $35,600 15 per centum
$35,600 or more but less than $36,500 10 per centum
$36,500 or more but less than $37,400 5 per centum
Percentage Assessed Valuation
Annual Income as of July 1, 2017 Exempt From Taxation
More than $50,000 but less than $51,000 45 per centum
$51,000 or more but less than $52,000 40 per centum
$52,000 or more but less than $53,000 35 per centum
$53,000 or more but less than $53,900 30 per centum
$53,900 or more but less than $54,800 25 per centum
$54,800 or more but less than $55,700 20 per centum
$55,700 or more but less than $56,600 15 per centum
A. 10030 226
$56,600 or more but less than $57,500 10 per centum
$57,500 or more but less than $58,400 5 per centum
7. Any exemption provided by this section shall be computed after all
other partial exemptions allowed by law have been subtracted from the
total amount assessed; provided, however, that no parcel may receive an
exemption pursuant to both this section and section 11-245.3.
8. (a) For purposes of this section, title to that portion of real
property owned by a cooperative apartment corporation in which a
tenant-stockholder of such corporation resides, and which is represented
by his or her share or shares of stock in such corporation as determined
by its or their proportional relationship to the total outstanding stock
of the corporation, including that owned by the corporation, shall be
deemed to be vested in such tenant-stockholder. That proportion of the
assessment of such real property owned by a cooperative apartment corpo-
ration determined by the relationship of such real property vested in
such tenant-stockholder to such entire parcel and the buildings thereon
owned by such cooperative apartment corporation in which such tenant-
stockholder resides shall be subject to exemption from taxation pursuant
to this section and any exemption so granted shall be credited by the
department of finance against the assessed valuation of such real prop-
erty; the reduction in real property taxes realized thereby shall be
credited by the cooperative apartment corporation against the amount of
such taxes otherwise payable by or chargeable to such tenant-stockhold-
er.
(b) Notwithstanding any other provision of law, a tenant-stockholder
who resides in a dwelling which is subject to the provisions of either
article two, four, five or eleven of the private housing finance law
shall not be eligible for an exemption pursuant to this subdivision.
9. Notwithstanding any other provision of law to the contrary, the
provisions of this section shall apply to real property held in trust
solely for the benefit of a person or persons who would otherwise be
eligible for a real property tax exemption, pursuant to subdivision one
of this section, were such person or persons the owner or owners of such
real property.
10. Exemption Option. Notwithstanding any provision of this part to
the contrary, real property owned by one or more persons where one of
such owners qualifies for a real property tax exemption pursuant to this
section or section 11-245.3 of this part, and another of such owners
qualifies for a different tax exemption pursuant to such sections of
this part as authorized by state law, such owners shall have the option
of choosing the one exemption which is most beneficial to such owners.
Such owners shall not be prohibited from taking one such exemption sole-
ly on the basis that such owners qualify for more than one exemption and
therefore are not eligible for any exemptions.
§ 11-245.45 Exemption for veterans. Pursuant to paragraph (d) of
subdivision eight of section four hundred fifty-eight of the real prop-
erty tax law, the city hereby authorizes real property owned by a coop-
erative apartment corporation to be exempt from taxation in accordance
with such section and any local laws adopted pursuant to such section
beginning July first, nineteen hundred ninety-eight.
§ 11-245.46 Exemption for veterans; taxes for school purposes
exempted. Pursuant to paragraph three of subdivision one of section
four hundred fifty-eight of the real property tax law, the city hereby
provides that the exemption authorized pursuant to such section shall be
applicable to taxes for school purposes.
A. 10030 227
§ 11-245.5 Alternative exemption for veterans. Pursuant to paragraph
(d) of subdivision six of section four hundred fifty-eight-a of the real
property tax law, the city hereby authorizes real property owned by a
cooperative apartment corporation to be exempt from taxation in accord-
ance with such section and any local laws adopted pursuant to such
section beginning July first, nineteen hundred ninety-eight.
§ 11-245.6 Alternative exemption for veterans; maximum exemptions
allowable. Pursuant to subparagraph (ii) of paragraph (d) of subdivision
two of section four hundred fifty-eight-a of the real property tax law,
the city hereby increases the maximum exemptions allowable in paragraphs
(a), (b) and (c) of subdivision two of section four hundred
fifty-eight-a of the real property tax law. The maximum exemption allow-
able in such paragraph (a) shall be fifteen percent of the assessed
value of the qualifying residential real property; provided, however,
that such exemption shall not exceed forty-eight thousand dollars or the
product of forty-eight thousand dollars multiplied by the latest class
ratio, whichever is less. In addition to the exemption provided by such
paragraph (a), as increased by this section, the maximum exemption
allowable in such paragraph (b) shall be ten percent of the assessed
value of the qualifying residential real property; provided, however,
that such exemption shall not exceed thirty-two thousand dollars or the
product of thirty-two thousand dollars multiplied by the latest class
ratio, whichever is less. In addition to the exemptions provided by such
paragraphs (a) and (b), as increased by this section, the maximum
exemption allowable in such paragraph (c) shall be the product of the
assessed value of the qualifying residential real property multiplied by
fifty percent of the veteran's disability rating; provided, however,
that such exemption shall not exceed one hundred sixty thousand dollars
or the product of one hundred sixty thousand dollars multiplied by the
latest class ratio, whichever is less. The maximum exemptions allowable
in such paragraphs (a), (b) and (c), as increased by this section, shall
not apply to any assessment roll completed and filed prior to the first
day of January, two thousand six.
§ 11-245.7 Alternative exemption for veterans; gold star parent.
Pursuant to paragraph (b) of subdivision seven of section four hundred
fifty-eight-a of the real property tax law, and in accordance with such
section and any local laws adopted pursuant thereto, the city hereby
includes a gold star parent within the definition of "qualified owner"
as provided in paragraph (c) of subdivision one of such section, and
includes property owned by a gold star parent within the definition of
"qualifying residential real property" as provided in paragraph (d) of
subdivision one of such section, provided that such property is the
primary residence of the gold star parent.
§ 11-245.75 Alternative exemption for veterans; school district taxa-
tion exempted. Pursuant to subparagraph (i) of paragraph (d) of subdivi-
sion two of section four hundred fifty-eight-a of the real property tax
law, the city hereby provides that the exemptions allowable in para-
graphs (a), (b) and (c) of subdivision two of section four hundred
fifty-eight-a of the real property tax law shall be applicable to school
district taxation.
§ 11-245.8 ENERGY STAR appliances. a. For the purposes of this
section, the following definitions shall apply in conjunction with the
definitions found in sections 27-232 and 27-2004 of this code:
(1) The term "ENERGY STAR" shall mean a designation from the United
States environmental protection agency or department of energy indicat-
A. 10030 228
ing that a product meets the energy efficiency standards set forth by
the agency for compliance with the ENERGY STAR program.
(2) The term "household appliance" shall mean any refrigerator, room
air conditioner, dishwasher or clothes washer, within a dwelling unit in
a multiple dwelling that is provided by the owner of such multiple
dwelling. This definition shall also include any boiler or furnace that
provides heat or hot water for any dwelling unit in a multiple dwelling.
b. For any building for which any benefit is conferred pursuant to
four hundred eighty-nine of the real property tax law, whenever any
household appliance in any dwelling unit, or any household appliance
that provides heat or hot water for any dwelling unit in a multiple
dwelling, is installed or replaced with a new household appliance, such
new appliance shall be certified as Energy Star.
c. For any building for which any benefit is conferred pursuant to
section four hundred twenty-one-a of the real property tax law, whenever
any household appliance in any dwelling unit, or any household appliance
that provides heat or hot water for any dwelling unit in a multiple
dwelling, is installed or replaced with a new household appliance, such
new appliance shall be certified as Energy Star.
d. The commissioner may enact rules requiring additional energy
conservation measures for any building for which any benefit is
conferred pursuant to section four hundred eighty-nine of the real prop-
erty tax law or section four hundred twenty-one-a of the real property
tax law.
e. The commissioner shall inform applicants for any benefits affected
by this section of the requirements of this section.
f. The requirements of subdivisions b and c of this section shall not
apply where:
1) an ENERGY STAR certified household appliance of appropriate size is
not manufactured, such that movement of walls or fixtures would be
necessary to create sufficient space for such appliance; or
2) an ENERGY STAR certified boiler or furnace of sufficient capacity
is not manufactured.
§ 11-245.9 Notice of residential property tax exemptions. a. The
commissioner of finance, or his or her designee, shall provide a notice
relating to the lien sale process to all property owners included with
the notice of value sent to property owners by the department of finance
and, in addition, no later than October thirty-first of each year, to
any property owner who is delinquent in the payment of any real property
taxes, assessments, or any other charges that are made a lien subject to
the provisions of chapter three of this title, except sewer rents, sewer
charges and water rents, if such delinquency, in the aggregate, equals
or exceeds the sum of one thousand dollars. This notice shall include,
but not be limited to, actions homeowners can take if a lien is sold on
such property; the type of debt that can be sold in a lien sale; a time-
line of statutory notifications required pursuant to section 11-320 of
this title; a clear, concise explanation of the consequences of the sale
of a tax lien; the telephone number and electronic mail address of the
employee or employees designated pursuant to subdivision f of section
11-320 of this title; a conspicuous statement that an owner of any class
of property may enter into a payment plan for the satisfaction of delin-
quent real property taxes, assessments, sewer rents, sewer surcharges,
water rents, and any other charges that are made a lien subject to the
provisions of chapter three of this title, or exclusion from the tax
lien sale; credits and property tax exemptions that may exclude certain
class one real property from a tax lien sale; and clear and concise
A. 10030 229
instructions on how an owner of any class of property may register to
receive information from the department, through electronic mail,
regarding outreach sessions relating to the sale of tax liens conducted
pursuant to subdivision j of section 11-320 of this title. Such notice
shall also include information on the following real property tax cred-
its or real property tax exemptions:
1. the senior citizen homeowner exemption pursuant to section 11-245.3
of this part;
2. the exemption for persons with disabilities pursuant to section
11-245.4 of this part;
3. the exemptions for veterans pursuant to sections four hundred
fifty-eight and four hundred fifty-eight-a of the real property tax law;
4. the school tax relief (STAR) exemption pursuant to section four
hundred twenty-five of the real property tax law;
5. the enhanced school tax relief (STAR) exemption pursuant to subdi-
vision four of section four hundred twenty-five of the real property tax
law;
6. the state circuit breaker income tax credit pursuant to subsection
(e) of section six hundred six of the tax law; and
7. any other credit or residential real property tax exemption, which,
in the discretion of the commissioner, should be included in such
notice.
Upon such property owner's written request, or verbal request to 311
or any employee designated pursuant to subdivision f of section 11-320
of this title, a Chinese, Korean, Russian or Spanish translation of such
notice shall be provided promptly to such property owner.
b. The notice required pursuant to this section shall include:
1. a brief description of each exemption program; and
2. a phone number at the department and a website address where
taxpayers can obtain additional information on the exemption programs
and all necessary forms and applications.
c. The notice that is required, pursuant to this section, to be
provided by the commissioner of finance or his or her designee no later
than October thirty-first of each year shall include contact information
for the office of financial empowerment at the department of consumer
and worker protection.
§ 11-245.10 Alternative exemption for veterans; transfer of title. 1.
Pursuant to subdivision eight of section four hundred fifty-eight-a of
the real property tax law, where a veteran, the spouse of a veteran or
unremarried surviving spouse already receiving an exemption pursuant to
such section sells the property receiving such exemption and purchases
property within the city, the department of finance shall transfer and
prorate, for the remainder of the fiscal year, the exemption received.
The prorated exemption shall be based upon the date the veteran, the
spouse of the veteran or unremarried surviving spouse obtains title to
the new property and shall be calculated by multiplying the tax rate for
which taxes were levied, on the appropriate tax roll used for the fiscal
year during which the transfer occurred, multiplied by the previously
granted exempt amount, multiplied by the fraction of each fiscal year
remaining subsequent to the transfer of title.
2. Nothing in this section shall be construed to remove the require-
ment that any such veteran, the spouse of the veteran or unremarried
surviving spouse transferring an exemption pursuant to subdivision one
of this section shall reapply for the exemption authorized pursuant to
section four hundred fifty-eight-a of the real property tax law on or
before the following taxable status date, in the event such veteran, the
A. 10030 230
spouse of the veteran or unremarried surviving spouse wishes to receive
the exemption in future fiscal years.
PART 2
EXEMPTION FOR CERTAIN NONPROFIT ORGANIZATIONS
§ 11-246 Taxation of property of nonprofit organizations, pharmaceu-
tical societies and dental societies. 1. a. Pursuant to the requirements
of sections four hundred twenty-a and four hundred forty-six of the real
property tax law, real property owned by a corporation or association
which is organized or conducted exclusively for religious, charitable,
hospital, educational or cemetery purposes, or for the purposes of the
moral or mental improvement of men, women or children or for two or more
such purposes shall not be taxable.
b. Real property owned by a corporation or association which is organ-
ized or conducted exclusively for Bible, tract, benevolent, missionary,
infirmary, public playground, scientific, literary, library, patriotic
or historical purposes, for the development of good sportsmanship for
persons under the age of eighteen years through the conduct of super-
vised athletic games, or for the enforcement of laws relating to chil-
dren or animals, or for two or more such purposes, and used exclusively
for carrying out thereupon one or more of such purposes either by the
owning corporation or association, or by another such corporation or
association as provided in section four hundred twenty-b of the real
property tax law shall not be taxable. Any corporation or association
which uses real property exempted from taxation pursuant to this para-
graph shall make available to the council, the commissioner of finance
and the public a report, in such form as may be prescribed by the
commissioner of finance, setting forth the efforts of such corporation
or association undertaken in the previous calendar year to provide
assistance to city programs and city residents, by filing such report
with the city clerk not later than June first of each year.
c. Real property owned by a corporation or association which is organ-
ized or conducted exclusively for bar association or medical society
purposes, or both such purposes, and used exclusively for carrying out
thereupon one or both such purposes either by the owning corporation or
association, or by another such corporation or association shall be
taxable pursuant to the authority contained in section four hundred
twenty-b of the real property tax law.
2. Real property from which no rent is derived and which is owned by
an incorporated pharmaceutical society which is either wholly or partly
within the city, which society has heretofore been or may hereafter be
authorized and empowered by act of the legislature to establish and
which has established or may hereafter establish a college of pharmacy
in this city shall be taxable.
3. Real property from which no income is derived which is owned by a
dental society of any judicial district which judicial district is whol-
ly or partly within the city, which dental society was incorporated
under the education law shall be taxable.
4. Real property previously exempt from taxation but made taxable
pursuant to this section as of the first of January, nineteen hundred
seventy-two shall be taxed for the period from the first of January to
and including the thirtieth of June, nineteen hundred seventy-two by
applying one-half of the tax rate for the fiscal year nineteen hundred
seventy-one, seventy-two to the assessments made and exemptions claimed
with reference to the taxable status date falling on the twenty-fifth of
A. 10030 231
January, nineteen hundred seventy-two. The taxes thus computed for the
period from the first of January to and including the thirtieth of June,
nineteen hundred seventy-two shall be due and payable on the first of
June, nineteen hundred seventy-two.
5. Real property which is taxable under this section shall be subject
to any special ad valorem levies and special assessments which are
imposed to defray the cost of improvements or services furnished by the
city.
§ 11-246.1 Denial; information required. The commissioner of finance
shall include, in any written communication with a property owner
related to the denial of a real property tax exemption pursuant to
section four hundred twenty-a, four hundred twenty-b, four hundred
forty-six, or four hundred sixty-two of the real property tax law,
information on actions a property owner can take, upon notice of a sale
of a tax lien of property of such owner, that may prevent the sale of
such tax lien.
PART 3
TAX EXEMPTION FOR CERTAIN INDUSTRIAL AND
COMMERCIAL PROPERTIES
§ 11-247 Definitions. When used in this part:
a. "Applicant" means any person or corporation obligated to pay real
property taxes on the property for which an exemption is sought, or in
the case of exempt property, the record owner thereof, provided, howev-
er, that such property is not commercial property located in an area
designated as excluded pursuant to section 11-249 of this part;
b. "Board" means the industrial and commercial incentive board;
c. "Commercial" means any non-residential property used primarily for
the buying, selling or otherwise providing of goods or services,
provided that the use of such property has not been designated as a
restricted commercial use pursuant to section 11-249 of this part;
d. "Construction" means the building of new industrial or commercial
structures on vacant or predominantly vacant land, or the modernization,
rehabilitation or expansion or other improvements of an existing commer-
cial structure where such modernization, rehabilitation, expansion or
other improvement is not physically or functionally integrated with the
existing structure or results in additional usable square footage fifty
per centum greater than the square footage of the existing structure;
e. "Industrial" means property used primarily for the manufacturing or
assembling of goods or the processing of raw materials;
f. "Predominantly vacant land" means land, including land under water,
on which not more than fifteen percent of the lot area contains
enclosed, permanent improvements; in addition, such land may include
existing foundations. A fence, shed, garage, attendant's booth, paving,
pier, bulkhead, lighting fixtures, and similar items, or any improvement
having an assessed value of less than two thousand dollars shall not
constitute an enclosed, permanent improvement;
g. "Reconstruction" means the modernization, rehabilitation, expansion
or other improvement of an existing commercial or industrial structure
where the total proposed project cost is in an amount equal to at least
twenty per centum of the assessed value of the property at the time an
application for a certificate of eligibility pursuant to this part is
made, and where such modernization, rehabilitation, expansion or other
improvement is physically and functionally integrated with the existing
structure and does not create additional usable square footage greater
A. 10030 232
than fifty per centum of the usable square footage of the existing
structure except in a case where the existing structure has been
substantially destroyed by fire or other casualty;
h. "Residential property" shall mean property, other than property
used for hotel purposes, on which will exist upon completion of
construction a building or structure containing more than one independ-
ent dwelling unit or where more than one-third of the total square
footage of said structure is to be used for residential purposes; it
shall also mean, in the case of reconstruction, property on which exists
or will exist upon completion of the reconstruction a building or struc-
ture where more than one-third of the total square footage is used or is
to be used for dwelling purposes;
i. "Vacant land" means land, including land under water, which
contains no enclosed, permanent improvement. A fence, shed, garage,
attendant's booth, paving, pier, bulkhead, lighting fixtures, and simi-
lar items, or any improvement having an assessed value of less than two
thousand dollars shall not constitute an enclosed, permanent improve-
ment.
§ 11-248 Industrial and commercial incentive board. There shall be an
industrial and commercial incentive board to consist of the deputy mayor
who shall be chairperson of the board, the commissioner of finance, the
director of planning and the director of budget, each of whom shall have
the power to designate an alternate to represent him or her at board
meetings with all the rights and powers, including the right to vote,
reserved to all board members, provided that such designation be in
writing to the chairperson of the board, and three other members to be
appointed by the mayor. The members of the board who shall be agents,
officers, or employees of the city shall serve without compensation but
shall be reimbursed for expenses necessarily incurred in the performance
of their duties. The members of the board who are not agents, officers,
or employees of the city shall receive as compensation for their
services one hundred dollars per diem, provided, however, that the total
compensation paid to any such member shall not exceed twelve hundred
dollars for any calendar year. Four members of the board shall consti-
tute a quorum.
§ 11-249 Functions, powers and duties of the board; annual desig-
nation of exemption areas and restricted commercial uses. a. The
members of the board shall have the following functions, powers and
duties:
1. to receive and review applications for certificates of eligibility
pursuant to the charter and pursuant to subdivision thirteen of section
11-604 and subdivision (e) of section 11-503 of this title;
2. to make findings and determinations on the qualifications of
applicants for certificates of eligibility pursuant to this part and
subdivision (e) of section 11-503 of this title;
3. to issue certificates of eligibility and amendments thereto;
4. to make recommendations to the tax commission on the termination of
a tax exemption pursuant to section 11-253 of this part;
5. to designate annually, pursuant to subdivision b of this section,
areas in which exemptions for commercial construction or reconstruction
shall be granted as of right, areas from which such exemptions shall be
excluded and commercial uses for which the granting of exemptions shall
be restricted; and
6. to make and promulgate rules and regulations to carry out the
purposes of the board.
A. 10030 233
b. (1) Not later than October first of each year the board shall
publish a notice at least once in the official paper or a newspaper of
general circulation in the city setting forth: (i) the proposed bounda-
ries of areas in which commercial construction or reconstruction shall
be granted exemptions as of right, proposed boundaries of areas from
which exemptions for commercial construction or reconstruction shall be
excluded and proposed restricted commercial uses; and (ii) the date, not
earlier than ten nor later than thirty days following the publication of
such notice, on which the board will hold a public hearing to hear all
persons interested in the designation of such boundaries and restricted
commercial uses.
(2) Not earlier than ten nor later than thirty days following the
conclusion of the public hearing provided for in paragraph one of this
subdivision, the board shall designate the boundaries of areas in which
exemptions for commercial construction or reconstruction shall be grant-
ed as of right and areas from which such exemptions shall be excluded
and shall also designate restricted commercial uses. Such designations
shall be made upon the following determinations:
(i) With respect to areas in which exemption for commercial
construction or reconstruction shall be granted as of right, the board
shall determine that market conditions in each area are such that
exemptions are required to attract commercial construction or recon-
struction to the area and that attracting such construction or recon-
struction, and the granting of exemptions therefor, are in the public
interest. In making such determination, the board may consider, among
other factors, that the area is experiencing economic distress or is
characterized by an unusually large number of vacant, underutilized,
unsuitable or substandard structures, or by other substandard, unsani-
tary, deteriorated or deteriorating conditions, with or without tangible
blight, or that commercial development in the area will be beneficial to
the city's economy.
(ii) With respect to areas from which exemptions for commercial
construction or reconstruction are to be excluded, the board shall
determine that market conditions in each area are such that exemptions
are not required to attract commercial construction or reconstruction to
the area, or that it is not in the public interest to grant exemptions
for commercial construction or reconstruction in the area. No applica-
tions for exemptions for commercial construction or reconstruction shall
be accepted from such areas.
(iii) With respect to restricted commercial uses, the board shall
determine that it is not in the public interest to grant exemptions for
such uses unless the board further determines that in certain areas
designated pursuant to this subdivision, such uses will have an espe-
cially positive impact on the area's economy. All applications for
exemptions for restricted commercial uses shall be determined pursuant
to paragraphs two and three of subdivision b of section 11-251 of this
part.
(3) Designations made pursuant to this subdivision shall be effective
on the first of January of each year.
c. So far as practicable and subject to the approval of the mayor, the
services of all other city departments and agencies shall be made avail-
able by their respective heads to the board for the carrying out of the
functions stated in this part. The head of any department or agency
shall furnish information in the possession of such department or agency
when the board, after consultation with the mayor, so requests.
A. 10030 234
§ 11-250 Real property tax exemption. a. A real property tax
exemption pursuant to this part shall be granted to an applicant who,
within a period of thirty-six months, or following an extension pursuant
to section 11-254 of this part within a period of forty-eight months,
from the date of issuance of a certificate of eligibility has completed
reconstruction or construction work in accordance with the plans
approved by the board in the certificate of eligibility. The amount of
the tax exemption shall be determined as follows:
(1) In the case of an applicant who has completed industrial
construction or reconstruction work, or commercial reconstruction work
designated as of right pursuant to section 11-249 of this part or as
specially needed pursuant to section 11-251 of this part, the tax
exemption shall continue for nineteen tax years in an amount decreasing
by five per centum each year from an exemption of ninety-five per centum
of the exemption base, as defined in paragraph four of this subdivision.
(2) In the case of an applicant who has completed other commercial
reconstruction work, or new commercial construction work designated as
of right pursuant to section 11-249 of this part or as specially needed
pursuant to section 11-251 of this part, the tax exemption shall contin-
ue for ten tax years, in an amount decreasing by five per centum each
year from an exemption of fifty per centum of the exemption base.
(3) In the case of an applicant who has completed other new commercial
construction work, the exemption shall continue for five tax years in an
amount decreasing by ten per centum each year from an exemption of fifty
per centum of the exemption base.
(4) The term "exemption base" shall mean the difference between the
final assessed value of the property as determined upon completion of
the construction or reconstruction work and the lesser of (i) the
assessed value of the property at the time an application for certif-
icate of eligibility pursuant to this part is made, or (ii) the assessed
value as may thereafter be reduced pursuant to application to the tax
commission.
The tax exemption shall be computed according to the following tables:
CONSTRUCTION OR RECONSTRUCTION OF INDUSTRIAL STRUCTURES OR
RECONSTRUCTION OF AS OF RIGHT OR SPECIALLY NEEDED COMMERCIAL STRUCTURES
========================================================================
Year following
completion Percentage
of work of exemption
------------------------------------------------------------------------
1...........................................95
2...........................................90
3...........................................85
4...........................................80
5...........................................75
6...........................................70
7...........................................65
8...........................................60
9...........................................55
10...........................................50
11...........................................45
12...........................................40
13...........................................35
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14...........................................30
15...........................................25
16...........................................20
17...........................................15
18...........................................10
19........................................... 5
========================================================================
RECONSTRUCTION OF OTHER COMMERCIAL STRUCTURES OR CONSTRUCTION OF AS OF
RIGHT OR SPECIALLY NEEDED COMMERCIAL STRUCTURES
========================================================================
Year following
completion of Percentage
work of exemption
------------------------------------------------------------------------
1..........................................50
2..........................................45
3..........................................40
4..........................................35
5..........................................30
6..........................................25
7..........................................20
8..........................................15
9..........................................10
10.......................................... 5
========================================================================
CONSTRUCTION OF OTHER NEW COMMERCIAL STRUCTURES
========================================================================
Year following
completion of Percentage
work of exemption
------------------------------------------------------------------------
1..........................................50
2..........................................40
3..........................................30
4..........................................20
5..........................................10
========================================================================
b. The taxes payable during the period from the issuance of a certif-
icate of eligibility to the approval of the tax exemption pursuant to
section 11-252 of this part shall be paid on the lesser of:
(1) the assessed value of the property at the time an application for
a certificate of eligibility pursuant to this part is made, or
(2) the assessed value as may thereafter be reduced pursuant to appli-
cation to the tax commission, provided, however, that if reconstruction
or construction is not completed in accordance with the plans approved
in the certificate of eligibility including any amendments thereto,
taxes shall be due and payable retroactively as otherwise required by
law.
c. In all cases where the board shall have issued a certificate of
eligibility prior to January first, nineteen hundred eighty-two, the
exemption percentage shall apply to any subsequent increase in the
A. 10030 236
assessed valuation of the property during the tenure of the exemption.
Where the board has issued a certificate of eligibility on or after
January first, nineteen hundred eighty-two, the exemption percentage
shall apply to any subsequent increase in the assessed valuation of the
property during the first two years after approval of the tax exemption
pursuant to section 11-252 of this part. Commencing two years after
approval of the tax exemption pursuant to section 11-252 of this part,
the exemption percentage shall apply to any subsequent increase in
assessed valuation of the property only to the extent such increase is
attributable to the construction or reconstruction work approved in the
certificate of eligibility.
d. The provisions of this part shall not apply to any increase in
assessed value resulting from the construction or reconstruction of a
residential structure on any property receiving an exemption under the
provisions of this part. The provisions of this part shall apply exclu-
sively to those structures and the lands underlying them which were
identified explicitly in the certificate of eligibility.
e. The provisions of this part shall not apply if any new or rehabili-
tated construction displaces or replaces a building or buildings
containing more than twenty-five occupied dwelling units in existence on
the date an application for certificate of eligibility is submitted for
preliminary approval pursuant to section 11-251 of this part, which are
administered under the local emergency housing rent control act, the
rent stabilization law of nineteen hundred sixty-nine or the emergency
tenant protection act of nineteen seventy-four, or their successor stat-
utes applicable to the city of Staten Island, unless a certificate of
eviction has been issued for any of the displaced or replaced units
pursuant to the powers granted by the city rent and rehabilitation law.
f. The provisions of this part shall not apply to an applicant who
has commenced construction or reconstruction work prior to the granting
of a certificate of eligibility except where applicant, having filed an
application for a certificate of eligibility, receives written permis-
sion to commence from the board or its designated representative prior
to the granting of a certificate of eligibility. Demolition of existing
structures, site preparation limited to grading, filling or clearing, or
the curing of a safety or sanitary hazard shall not be deemed to be
commencement of construction or reconstruction work.
g. Any property enjoying the benefits of a tax exemption approved by
the board shall be ineligible for any subsequent or additional tax
exemption pursuant to the provisions of this part until the expiration
of the original exemption period or earlier termination of the existing
exemption by action of the tax commission.
§ 11-251 Applications for certificates of eligibility. a. Applica-
tions for a certificate of eligibility pursuant to this part shall be
submitted for preliminary approval to the office for economic develop-
ment commencing immediately after March first, nineteen hundred eighty-
two and continuing until the thirty-first of January, nineteen hundred
eighty-six, on such form or forms as shall be prescribed by the board.
In addition to any other information required by the board, the applica-
tion shall include plans for reconstruction or construction that have
been certified by a professional engineer or an architect of the appli-
cant's choice and cost estimates or bids for the proposed reconstruction
or construction. Upon a finding by such office that the application
satisfies the requirements of reconstruction or construction as defined
in this part, the application shall be presented to the board for evalu-
A. 10030 237
ation and written notice thereof shall be given to the community board
of the district in which the application site is located.
b. (1) In the case of an application for construction or recon-
struction of an industrial structure or a commercial structure located
in an area designated as of right, the board shall issue a certificate
of eligibility upon determining that the application satisfies the
requirements of construction or reconstruction as defined in this part,
that the applicant has obtained plans for construction or reconstruction
certified by a professional engineer or architect, and that the appli-
cant has otherwise complied with the provisions of this part and other
applicable provisions of law.
(2) In the case of an application for construction or reconstruction
of a commercial structure not located in an as of right area, or involv-
ing a restricted commercial use, the board shall issue a certificate of
eligibility upon making the determination specified in paragraph one of
this subdivision and upon making the further determination that the
granting of a tax exemption for the construction or reconstruction of
such a structure in the proposed location is in the public interest. In
making such determination, the board shall make findings that there is a
need in the area for the services the enterprise will provide, that the
enterprise will generate or retain employment in the area, and that a
tax incentive is required to attract construction or reconstruction of
such a structure to the area. In addition, the board shall consider the
economic impact such commercial structure will have in the area.
(3) In the case of an application for construction or reconstruction
of a commercial structure not located in an as of right area, or involv-
ing a restricted commercial use, the board may make a further determi-
nation that special circumstances warrant designating the proposed
construction or reconstruction as "specially needed". In making such
determination, the board shall make findings that the commercial
services to be provided will have an especially positive impact on the
area's or the city's economy and that the applicant has demonstrated
that the project cannot go forward without the greater exemption granted
by such designation.
c. Any meeting of the board at which an application for a certificate
of eligibility is to be considered shall be open to the public, and
notice of such meeting shall be given at least two weeks prior thereto
by publication in a newspaper of general circulation within the city.
d. The burden of proof shall be on the applicant to show by clear and
convincing evidence that the requirements for granting a tax exemption
pursuant to this part have been satisfied, and the board shall have the
authority to require that statements made in consideration of the appli-
cation be taken under oath.
e. After the issuance of a certificate of eligibility the applicant
shall apply to the city tax commission, during the period provided by
law for filing applications for corrections of assessed valuations, for
a tax exemption as provided for in section 11-250 of this part. The
application shall be accompanied by a copy of the certificate of eligi-
bility.
§ 11-252 Approval of tax exemption. On completion of the recon-
struction or construction work the applicant shall notify the board in
writing of said completion. The board shall determine the eligibility
of the applicant for the tax exemption as provided in section 11-250 of
this part and shall notify the tax commission of such determination. If
the applicant is determined to be qualified the commission shall approve
the tax exemption.
A. 10030 238
§ 11-253 Continuation of tax exemption; termination of tax exemption.
The tax exemption approved by the board shall continue in accordance
with this part, provided that the applicant files an annual certificate
of continuing use stating that the structure and property continue to be
used for the industrial or commercial purposes justifying the issuance
of the certificate of eligibility. The certificate of continuing use
shall be filed with the tax commission on such form or forms and
containing such information as shall be prescribed by the tax commis-
sion. The tax commission shall have authority to terminate a tax
exemption on failure of an applicant to file an annual certificate of
continuing use or on the recommendation of the commissioner of finance
who, in reviewing the certificate filed by an applicant, has determined
that the structure or property has ceased to be used for the industrial
or commercial purposes justifying the issuance of the certificate of
eligibility.
§ 11-254 Extension of time for completion. Where an applicant has
received a certificate of eligibility but has not completed or will not
be able to complete the construction or reconstruction work within thir-
ty-six months, the board shall, upon application, extend to forty-eight
months, from the time of issuance of such certificate, the time for
completion of the construction or reconstruction work; provided the
applicant has completed not less than two-thirds of the work as speci-
fied in the certified plans previously filed with the application at the
time of such application for extension.
§ 11-255 Prior certificates of eligibility. Any project for which a
certificate of eligibility has been approved by the board prior to the
enactment of this section shall be eligible for a tax exemption computed
according to the tax exemption tables and formulae in effect on the date
of such approval.
PART 4
TAX EXEMPTION AND DEFERRAL OF TAX
PAYMENT FOR CERTAIN
INDUSTRIAL AND COMMERCIAL PROPERTIES
§ 11-256 Definitions. When used in this part:
a. "Applicant" means any person obligated to pay real property taxes
on the property for which an exemption from or abatement or deferral of
real property tax payments is sought, or in the case of exempt property,
the record owner or lessee thereof.
b. "Approved plans" means plans submitted to and approved by the
department of buildings in connection with the applicant's building
permit, including any amendments to such plans approved by such depart-
ment before final inspection of the work for which such permit was
issued.
c. "Benefit period" means the period of time when a recipient is
eligible to receive benefits pursuant to this part including in the case
of a recipient of a certificate of eligibility for commercial
construction work in a deferral area, the period of time when tax
payments are to be deferred, the interim period when no tax payments are
to be deferred and no deferred tax payments are required to be made, and
the period of time when the deferred tax payments are to be made.
d. "Commission" means the temporary commercial incentive area boundary
commission.
e. "Commercial construction work" means the construction of a new
building or structure, or portion thereof, or the modernization, reha-
A. 10030 239
bilitation, expansion, or other improvement of an existing building or
structure, or portion thereof, for use as commercial property.
f. "Commercial property" means nonresidential property: (1) on which
will exist after completion of commercial construction work, a building
or structure used for the buying, selling or otherwise providing of
goods or services including hotel services, or for other lawful busi-
ness, commercial or manufacturing activities; and (2) (a) where, except
as provided in subparagraph (b) of this paragraph and paragraph (3) of
this subdivision, not more than fifteen per centum of the total net
square footage of any building or structure on such property was used
for manufacturing activities at any one or more times during the twen-
ty-four months immediately preceding the date of application for a
certificate of eligibility or (b) where not more than fifteen per centum
of the total net square footage of any building or structure on such
property was used for manufacturing activities at any one or more times
during the sixty months immediately preceding the date of application
for a certificate of eligibility if such property is located, in whole
or in part, in the area in the borough of Manhattan lying south of the
center line of 96th Street; and (3) in the commercial revitalization
area, and with respect to an application for a certificate of eligibil-
ity filed on or after July first, two thousand, "commercial property"
means nonresidential property on which will exist after completion of
commercial construction work, a building or structure used for the
buying, selling or otherwise providing of goods or services including
hotel services, or for other lawful business, commercial or manufactur-
ing activities.
f-1. "Commercial revitalization area" means any district that is zoned
C4, C5, C6, M1, M2 or M3 in accordance with the zoning resolution in any
area of the city.
g. "Deferral area" means an area in which deferral of payment of real
property taxes in accordance with section 11-257 of this part shall be
available to a recipient who has performed commercial construction work.
h. "Excluded area" means each area specified in paragraphs (1), (2)
and (3) of subdivision d of section 11-258 of this part.
i. "Exemption base". (1) For purposes of computing the exemption
pursuant to subdivision a, b, c or d of section 11-257 of this part,
"exemption base" shall mean, with respect to property that is the
subject of a certificate of eligibility with an effective date of June
thirtieth, nineteen hundred ninety-two or before: (a) for the first,
second and third taxable years following the effective date of a certif-
icate of eligibility, the assessed value of improvements made since the
effective date of such certificate which are attributable exclusively to
commercial or industrial construction work described in approved plans;
and (b) for all other years, the assessed value of such improvements
which have been made before the fourth taxable status date following the
effective date of such certificate.
(2) For purposes of computing the exemption pursuant to subdivision c,
d or e of section 11-257 of this part, "exemption base" shall mean, with
respect to property that is the subject of a certificate of eligibility
with an effective date of July first, nineteen hundred ninety-two or
after: (a) for the first through fifth taxable years following the
effective date of a certificate of eligibility, the assessed value of
improvements made since the effective date of such certificate which are
attributable exclusively to commercial or renovation construction work
described in approved plans; and (b) for all other years, the assessed
A. 10030 240
value of such improvements which have been made before the sixth taxable
status date following the effective date of such certificate.
(3) For purposes of computing the exemption pursuant to subdivision a
or b of section 11-257 of this part, "exemption base" shall mean, with
respect to property that is the subject of a certificate of eligibility
with an effective date of July first, nineteen hundred ninety-two or
after: (a) for the first through fifth taxable years following the
effective date of a certificate of eligibility, the assessed value of
improvements made since the effective date of such certificate which are
attributable exclusively to commercial or industrial construction work
described in approved plans plus any equalization increases or minus any
equalization decreases in the assessed value of the property so improved
(excluding the land) occurring subsequent to the effective date of such
certificate; and (b) for all other years, the assessed value of such
improvements made before the sixth taxable status date following the
effective date of such certificate plus any equalization increases or
minus any equalization decreases in the assessed value of the property
so improved (excluding the land) occurring subsequent to the effective
date of such certificate but before the fourteenth taxable status date
following the effective date of such certificate. For purposes of the
preceding sentence: no adjustment shall be made to the assessed value of
the improvements referred to in subparagraphs (a) and (b) of this para-
graph for any portion of an equalization increase or decrease which is
being phased in pursuant to section eighteen hundred five of the real
property tax law subsequent to the effective date of the certificate of
eligibility if such increase or decrease occurred prior to such effec-
tive date; with respect to any taxable year, an adjustment for an equal-
ization increase or decrease shall reflect only the portion of such
increase or decrease which is being phased in during such taxable year
or which was phased in during a prior taxable year; no adjustment for an
equalization decrease shall reduce the exemption base to an amount less
than the assessed value of the improvements referred to in subparagraphs
(a) and (b) of this paragraph, and, to the extent that any such decrease
would reduce the exemption base below such amount, such decrease shall
reduce the taxable portion of the assessed value; and no adjustment
shall be made for an equalization increase or decrease if the improve-
ments referred to in subparagraphs (a) and (b) of this paragraph do not
result in a physical increase in the assessed value of the property.
(4) Notwithstanding paragraph one of this subdivision, for purposes of
computing the exemption pursuant to subdivision a of section 11-257 of
this part, "exemption base" shall mean, with respect to industrial prop-
erty that is located in the area in Staten Island; and that is the
subject of a certificate of eligibility with an effective date after
December thirty-first, nineteen hundred eighty-nine and before July
first, nineteen hundred ninety-two: (a) for the first, second and third
taxable years following the effective date of a certificate of eligibil-
ity, the assessed value of improvements made since the effective date of
such certificate which are attributable exclusively to industrial
construction work described in approved plans; and (b) for all other
years, the assessed value of such improvements made before the fourth
taxable status date following the effective date of such certificate
plus any equalization increases or minus any equalization decreases in
the assessed value of the property so improved (excluding the land)
occurring subsequent to the fourth taxable status date following the
effective date of such certificate but before the fourteenth taxable
status date following the effective date of such certificate. For
A. 10030 241
purposes of the preceding sentence: no adjustment shall be made to the
assessed value of the improvements referred to in subparagraphs (a) and
(b) of this paragraph for any portion of an equalization increase or
decrease which is being phased in pursuant to section eighteen hundred
five of the real property tax law subsequent to the effective date of
the certificate of eligibility if such increase or decrease occurred
prior to such effective date; with respect to any taxable year, an
adjustment for an equalization increase or decrease shall reflect only
the portion of such increase or decrease which is being phased in during
such taxable year or which was phased in during a prior taxable year; no
adjustment for an equalization decrease shall reduce the exemption base
to an amount less than the assessed value of the improvements referred
to in subparagraphs (a) and (b) of this paragraph, and, to the extent
that any such decrease would reduce the exemption base below such
amount, such decrease shall reduce the taxable portion of the assessed
value; and no adjustment shall be made for an equalization increase or
decrease if the improvements referred to in subparagraphs (a) and (b) of
this paragraph do not result in a physical increase in the assessed
value of the property.
(5) For purposes of computing the exemption: (a) pursuant to subdivi-
sion e.1 of section 11-257 of this part, "exemption base" shall mean,
with respect to property that is the subject of a certificate of eligi-
bility with an effective date of July first, nineteen hundred ninety-
five or after and that is located in the new construction exemption area
specified in paragraph one of subdivision e of section 11-258 of this
part: for any taxable year following the effective date of a certificate
of eligibility, the assessed value of improvements made since the effec-
tive date of such certificate which are attributable exclusively to the
construction of a new building or structure that meets the requirements
set forth in subdivision i of section 11-259 of this part as described
in approved plans, provided such improvements are made within thirty-six
months of the effective date of such certificate or by December thirty-
first, nineteen hundred ninety-nine, whichever is earlier; and (b)
pursuant to subdivision e.1 of section 11-257 of this part, "exemption
base" shall mean, with respect to property that is the subject of a
certificate of eligibility with an effective date of July first, nine-
teen hundred ninety-five or after and that is located in the new
construction exemption area specified in paragraph two of subdivision e
of section 11-258 of this part: for any taxable year following the
effective date of a certificate of eligibility, the assessed value of
improvements made since the effective date of such certificate which are
attributable exclusively to the construction of a new building or struc-
ture that meets the requirements set forth in subdivision i of section
11-259 of this part as described in approved plans, provided such
improvements are made within forty-two months of the effective date of
such certificate.
(6) For purposes of this subdivision "equalization increase or
decrease" means an increase or decrease in the assessed value of proper-
ty which is not attributable to construction work, fire, demolition,
destruction or other change in the physical characteristics of the prop-
erty (excluding gradual physical deterioration or obsolescence), or to a
change in the description or boundaries of the property.
j. "Industrial construction work" means the construction of a new
building or structure or the modernization, rehabilitation, expansion or
improvement of an existing building or structure for use as industrial
property.
A. 10030 242
k. "Industrial property" means nonresidential property on which will
exist after completion of industrial construction work a building or
structure wherein at least seventy-five per centum of the total net
square footage is used or immediately available and held out for use for
manufacturing activities involving the assembly of goods or the fabri-
cation or processing of raw materials.
l. "Initial assessed value" means the lesser of: (1) the taxable
assessed value of real property appearing on the books of the annual
record of the assessed valuation of real property on the effective date
of a recipient's certificate of eligibility; or (2) the assessed value
to which such assessment is thereafter reduced pursuant to application
to the tax commission or court order. Where the real property is used
for both residential and nonresidential purposes on the effective date
of such certificate of eligibility, the initial assessed value of such
real property, determined as provided in the preceding sentence, shall
be apportioned between the residential and nonresidential portions ther-
eof in such manner as shall properly reflect the initial assessed value
of each such portion. Such apportionment shall be in accordance with
rules promulgated by the department of finance.
m. "Manufacturing activity" means an activity involving the assembly
of goods or the fabrication or processing of raw materials.
n. "Minimum required expenditure" means expenditure for commercial,
renovation or industrial construction work in an amount equal to twenty
per centum of the initial assessed value; provided, however, that with
respect to a recipient who filed an application on or after July first,
nineteen hundred ninety-five for a certificate of eligibility for indus-
trial construction work or for commercial construction work in a special
exemption area or a regular exemption area, minimum required expenditure
means expenditure for such work in an amount equal to ten per centum of
the initial assessed value; provided, however, that with respect to a
recipient who filed an application on or after July first, nineteen
hundred ninety-five for a certificate of eligibility for industrial
construction work and for the purpose of receiving an abatement of real
property taxes in accordance with paragraph (3) of subdivision a of
section 11-257 of this part, minimum required expenditure means expendi-
ture for such work in an amount equal to twenty-five per centum of the
initial assessed value; and provided further that if the department of
finance, after consultation with the deputy mayor for finance and
economic development, determines that a greater expenditure is required
to encourage significant industrial and commercial development it may
establish by rule a higher percentage of initial assessed value, not to
exceed fifty per centum thereof, as the minimum required expenditure.
Expenditure for residential construction work shall not be included in
the minimum required expenditure; provided, however, that for mixed-use
property, expenditures for construction work related to the common areas
and systems of such property shall be allocated, in accordance with
rules promulgated by the department of finance, between the residential
and nonresidential portions of the property. If real property was used
for both residential and nonresidential purposes on the effective date
of the certificate of eligibility, the initial assessed value of such
real property, for purposes of this subdivision, shall be the initial
assessed value apportioned to the nonresidential portions thereof.
o. "Person" means an individual, corporation, partnership, associ-
ation, agency, trust, estate, foreign or domestic government or subdivi-
sion thereof, or other entity.
A. 10030 243
p. "Recipient" means an applicant to whom a certificate of eligibility
has been issued pursuant to this part, or the successor in interest of
such applicant, provided that where a person who has entered into a
lease or purchase agreement with the owner or lessee of exempt property
has been a co-applicant, such person or the successor in interest of
such person shall be the recipient.
q. "Regular exemption area" means an area in which a regular exemption
from taxes in accordance with section 11-257 of this part shall be
available to a recipient who performs commercial construction work.
r. "Residential construction work" means any construction, moderniza-
tion, rehabilitation, expansion or improvement of dwelling units other
than dwelling units in a hotel.
s. "Residential property" means property, other than property used for
hotel purposes, on which exists, or will exist upon completion of
construction work, a building or structure used for residential
purposes.
t. "Restricted activity" means any entertainment activity which the
department of finance has identified in regulations promulgated pursuant
to this part as an activity which, in the public interest, should not be
encouraged through the benefits of this part.
u. "Special exemption area" means an area in which the commission has
determined that a special exemption from real property taxes in accord-
ance with subdivision b of section 11-257 of this part shall be avail-
able to a recipient who performs commercial construction work and, in
addition, means the area specified in paragraph four of subdivision c of
section 11-258 of this part.
v. "Mixed-use property" means property on which exists, or will exist
upon completion of construction work, a building or structure used for
both residential and nonresidential purposes.
w. "Renovation construction work" means the modernization, rehabili-
tation, expansion or improvement of an existing building or structure,
or portion thereof, for use as commercial property in a renovation
exemption area where such modernization, rehabilitation, expansion or
improvement is physically and functionally integrated with the existing
building or structure, or portion thereof, does not increase the bulk of
the existing building or structure by more than thirty per centum and
does not increase the height of the existing building or structure by
more than thirty per centum.
x. "Renovation exemption area" means the area specified in paragraph
(4) of subdivision d of section 11-258 of this part in which a reno-
vation exemption from taxes in accordance with subdivision e of section
11-257 of this part shall be available to a recipient who performs reno-
vation construction work.
y. "New construction exemption areas" means the areas specified in
subdivision e of section 11-258 of this part in which an exemption from
real property taxes in accordance with subdivision e.1 of section 11-257
of this part shall be available to a recipient who constructs a new
building or structure that meets the requirements set forth in subdivi-
sion i of section 11-259 of this part.
§ 11-257 Real property tax exemption; deferral of tax payments. The
city shall be divided into six classes of areas as provided in this part
and pursuant to designation of areas to be made by the temporary commer-
cial incentive area boundary commission. Within such areas, the follow-
ing benefits shall be available to qualified recipients:
a. (1) A recipient who, following the effective date of a certificate
of eligibility, has performed industrial construction work in any area
A. 10030 244
of the city shall be eligible for an exemption from real property taxes
as follows: For the first thirteen tax years, the recipient shall be
exempt from taxation on one hundred per centum of the exemption base.
For the following nine tax years, the recipient shall be exempt from
taxation on a percentage of the exemption base beginning at ninety per
centum thereof in the fourteenth tax year and decreasing by ten per
centum of said exemption base each year.
The following table shall illustrate the computation of the exemption
for industrial construction work:
Tax year following effective
date of certificate
of eligibility: Amount of exemption:
1 through 13 ............. Tax on 100% of exemption base
14 ........................ Tax on 90% of exemption base
15 ........................ Tax on 80% of exemption base
16 ........................ Tax on 70% of exemption base
17 ........................ Tax on 60% of exemption base
18 ........................ Tax on 50% of exemption base
19 ........................ Tax on 40% of exemption base
20 ........................ Tax on 30% of exemption base
21 ........................ Tax on 20% of exemption base
22 ........................ Tax on 10% of exemption base
(2) Notwithstanding paragraph one of this subdivision, a recipient who
filed an application for a certificate of eligibility for industrial
construction work in any area of such city on or after July first, nine-
teen hundred ninety-five, and who, following the effective date of such
certificate of eligibility, has performed such industrial construction
work shall be eligible for an exemption from real property taxes as
follows: for the first sixteen tax years, the recipient shall be exempt
from taxation on one hundred per centum of the exemption base. For the
following nine tax years, the recipient shall be exempt from taxation on
a percentage of the exemption base beginning at ninety per centum there-
of in the seventeenth tax year and decreasing by ten per centum of said
exemption base each year.
The following table shall illustrate the computation of the exemption
for industrial construction work pursuant to this paragraph:
Tax year following effective
date of certificate of
eligibility: Amount of exemption:
1 through 16.............. Tax on 100% of exemption base
17 ........................ Tax on 90% of exemption base
18 ........................ Tax on 80% of exemption base
19 ........................ Tax on 70% of exemption base
20 ........................ Tax on 60% of exemption base
21 ........................ Tax on 50% of exemption base
22 ........................ Tax on 40% of exemption base
23 ........................ Tax on 30% of exemption base
24 ........................ Tax on 20% of exemption base
25 ........................ Tax on 10% of exemption base
(3)(a) A recipient who filed an application for a certificate of
eligibility for industrial construction work in any area of such city on
or after July first, nineteen hundred ninety-five, and who, following
A. 10030 245
the effective date of such certificate of eligibility, both commenced
and completed such work, shall be eligible for an abatement of real
property taxes as follows: for the first tax year immediately following
completion of such work, and for the second, third and fourth tax years
following completion of such work, the abatement shall equal fifty per
centum of the real property tax that was imposed on the property which
is the subject of the certificate of eligibility for the tax year imme-
diately preceding the effective date of such certificate of eligibility,
provided, however, that if such property was fully or partially exempt
from real property taxes during such tax year, then the abatement shall
equal fifty per centum of the real property tax that would have been
imposed on such property but for such full or partial exemption. For the
fifth and sixth tax years, the abatement shall equal forty per centum of
such amount; for the seventh and eighth tax years, the abatement shall
equal thirty per centum of such amount; for the ninth and tenth tax
years, the abatement shall equal twenty per centum of such amount; and
for the eleventh and twelfth tax years, the abatement shall equal ten
per centum of such amount. Notwithstanding any inconsistent provision of
this paragraph, a recipient shall not be eligible for an abatement for
the first tax year following completion of such work, unless the recipi-
ent submits proof satisfactory to the department of finance that such
work was completed on or before the taxable status date for such first
tax year no later than thirty days after such taxable status date. Where
the recipient fails to submit such proof in accordance with the forego-
ing sentence, a recipient shall not be eligible for an abatement until
the second tax year following completion of such work. In such case, a
recipient shall submit proof satisfactory to the department of finance
that such work was completed on or before the taxable status date for
such first tax year no later than thirty days after the taxable status
date for such second tax year. A recipient whose abatement begins in the
second tax year following completion of such work shall not thereby have
his or her twelve-year benefit period shortened.
The following table shall illustrate the computation of the abatement
for industrial construction work pursuant to this paragraph:
Tax year following completion
of industrial construction
work: Amount of abatement:
1 ...................................................50%
2 ...................................................50%
3 ...................................................50%
4 ...................................................50%
5 ...................................................40%
6 ...................................................40%
7 ...................................................30%
8 ...................................................30%
9 ...................................................20%
10 ..................................................20%
11 ..................................................10%
12 ..................................................10%
(b) If, due to a determination of the department of finance or tax
commission of such city or a court, the real property tax imposed on
such property for the tax year immediately preceding the effective date
of such certificate of eligibility is changed, then any abatement that
was granted in accordance with this paragraph prior to such reduction
A. 10030 246
shall be recalculated and any abatement to be granted in accordance with
this paragraph shall be based on the real property tax imposed on such
property for the tax year immediately preceding the effective date of
such certificate of eligibility, as changed by such determination. The
amount equal to the difference between the abatement originally granted
and the abatement as so recalculated shall be deducted from any refund
otherwise payable or remission otherwise due as a result of a change due
to such determination, and any balance of such amount remaining unpaid
after making any such deduction shall be paid to the department of
finance within thirty days from the date of mailing by the department of
finance of a notice of the amount payable. Such amount payable shall
constitute a tax lien on such property as of the date of such notice
and, if not paid within such thirty-day period, penalty and interest at
the rate applicable to delinquent taxes on such property shall be
charged and collected on such amount from the date of such notice to the
date of payment.
(c) No property which is the subject of a certificate of eligibility
pursuant to this part shall receive more than one abatement pursuant to
this part and no abatement shall exceed one consecutive twelve-year
period as specified in subparagraph (a) of this paragraph.
(d) In no event shall an abatement granted pursuant to this part
exceed in any tax year the real property taxes imposed on the property
which is the subject of a certificate of eligibility pursuant to this
part.
(e) For the purpose of calculating an abatement of real property taxes
pursuant to this part, where a tax lot contains more than one building
or structure and not all of the buildings or structures comprising such
tax lot are the subject of a certificate of eligibility for industrial
construction work pursuant to this part, the real property taxes imposed
on such tax lot for the year immediately preceding the effective date of
such certificate of eligibility shall be apportioned among the build-
ings, structures and land comprising such tax lot and only such real
property taxes as are allocable to the property which is the subject of
the certificate of eligibility pursuant to this part shall be abated in
accordance with this paragraph. Such apportionment shall be in accord-
ance with rules promulgated by the department of finance.
(f) A recipient who filed an application for a certificate of eligi-
bility for industrial construction work in the commercial revitalization
area on or after July first, two thousand, and who, following the effec-
tive date of such certificate of eligibility, both commenced and
completed such work, shall be eligible for an abatement of real property
taxes in accordance with subparagraph (a) of this paragraph, provided,
however, that where the total net square footage of the industrial prop-
erty used or immediately available and held out for use for manufactur-
ing activities involving the assembly of goods or the fabrication or
processing of raw materials is less than seventy-five per centum of the
total net square footage of the industrial property, the abatement of
real property taxes shall be determined in accordance with rules promul-
gated by the department of finance. Notwithstanding the foregoing
sentence, no such abatement shall be allowed where the total net square
footage of the industrial property used or immediately available and
held out for use for such manufacturing activities after completion of
industrial construction work is less than the total net square footage
used or immediately available and held out for use for such manufactur-
ing activities before the commencement of such construction work. For
purposes of this subparagraph only, the term "industrial construction
A. 10030 247
work" shall mean the modernization, rehabilitation, expansion or
improvement of an existing building or structure for use as industrial
property and the term "industrial property" shall mean nonresidential
property on which will exist after completion of industrial construction
work a building or structure wherein at least twenty-five per centum of
the total net square footage is used or immediately available and held
out for use for manufacturing activities involving the assembly of goods
or the fabrication or processing of raw materials.
b. (1) A recipient who, following the effective date of a certificate
of eligibility, has performed commercial construction work in a special
exemption area shall be eligible for an exemption from real property
taxes as follows: For the first thirteen tax years, the recipient shall
be exempt from taxation on one hundred per centum of the exemption base.
For the following nine tax years, the recipient shall be exempt from
taxation on a percentage of the exemption base beginning at ninety per
centum thereof in the fourteenth tax year and decreasing by ten per
centum of said exemption base each year.
The following table shall illustrate the computation of the exemption
for commercial construction work in a special exemption area:
Tax year following effective
date of certificate
of eligibility: Amount of exemption:
1 through 13 ............. Tax on 100% of exemption base
14 ........................ Tax on 90% of exemption base
15 ........................ Tax on 80% of exemption base
16 ........................ Tax on 70% of exemption base
17 ........................ Tax on 60% of exemption base
18 ........................ Tax on 50% of exemption base
19 ........................ Tax on 40% of exemption base
20 ........................ Tax on 30% of exemption base
21 ........................ Tax on 20% of exemption base
22 ........................ Tax on 10% of exemption base
(2) Notwithstanding paragraph one of this subdivision, a recipient who
filed an application for a certificate of eligibility for commercial
construction work in a special exemption area on or after July first,
nineteen hundred ninety-five, and who, following the effective date of
such certificate of eligibility, has performed such commercial
construction work shall be eligible for an exemption from real property
taxes as follows: For the first sixteen tax years, the recipient shall
be exempt from taxation on one hundred per centum of the exemption base.
For the following nine tax years, the recipient shall be exempt from
taxation on a percentage of the exemption base beginning at ninety per
centum thereof in the seventeenth tax year and decreasing by ten per
centum of said exemption base each year.
The following table shall illustrate the computation of the exemption
for commercial construction work in a special exemption area pursuant to
this paragraph:
Tax year following effective
date of certificate
of eligibility: Amount of exemption:
1 through 16 ............. Tax on 100% of exemption base
17 ........................ Tax on 90% of exemption base
18 ........................ Tax on 80% of exemption base
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19 ........................ Tax on 70% of exemption base
20 ........................ Tax on 60% of exemption base
21 ........................ Tax on 50% of exemption base
22 ........................ Tax on 40% of exemption base
23 ........................ Tax on 30% of exemption base
24 ........................ Tax on 20% on exemption base
25 ........................ Tax on 10% of exemption base
c. (1) A recipient who, following the effective date of a certificate
of eligibility, has performed commercial construction work in a regular
exemption area shall be eligible for an exemption from real property
taxes as follows: For the first eight tax years, the recipient shall be
exempt from taxation on one hundred per centum of the exemption base.
For the following four tax years, the recipient shall be exempt from
taxation on a percentage of the exemption base beginning at eighty per
centum thereof in the ninth tax year and decreasing by twenty per centum
of said exemption base each year.
The following table shall illustrate the computation of the exemption
for commercial construction work in a regular exemption area:
Tax year following effective
date of certificate
of eligibility: Amount of exemption:
1 through 8 .............. Tax on 100% of exemption base
9 ......................... Tax on 80% of exemption base
10 ........................ Tax on 60% of exemption base
11 ........................ Tax on 40% of exemption base
12 ........................ Tax on 20% of exemption base
(2) Notwithstanding paragraph one of this subdivision, a recipient who
filed an application for a certificate of eligibility for commercial
construction work in a regular exemption area on or after July first,
nineteen hundred ninety-five, and who, following the effective date of
such certificate of eligibility, has performed such commercial
construction work shall be eligible for an exemption from real property
taxes as follows: For the first eleven tax years, the recipient shall be
exempt from taxation on one hundred per centum of the exemption base.
For the following four tax years, the recipient shall be exempt from
taxation on a percentage of the exemption base beginning at eighty per
centum thereof in the twelfth tax year and decreasing by twenty per
centum of said exemption base each year.
The following table shall illustrate the computation of the exemption
for commercial construction work in a regular exemption area pursuant to
this paragraph:
Tax year following effective
date of certificate
of eligibility: Amount of exemption:
1 through 11 ............. Tax on 100% of exemption base
12 ........................ Tax on 80% of exemption base
13 ........................ Tax on 60% of exemption base
14 ........................ Tax on 40% of exemption base
15 ........................ Tax on 20% of exemption base
d. Except as provided in paragraphs two and three of subdivision d of
section 11-258 of this part, a recipient who, following the effective
A. 10030 249
date of a certificate of eligibility, has performed commercial
construction work in a deferral area shall be eligible for a deferral of
tax payments as follows: For the first three tax years following the
effective date of a certificate of eligibility, the tax payment on one
hundred per centum of the exemption base shall be deferred. For the
following four tax years, the tax payment on a percentage of the
exemption base beginning at eighty per centum thereof in the fourth tax
year and decreasing by twenty per centum each year shall be deferred.
The total amount of tax payments deferred pursuant to this part shall be
paid subsequently over the course of ten tax years as follows: Commenc-
ing in the eleventh tax year following the effective date of the certif-
icate of eligibility, through and including the twentieth tax year
following such effective date, an amount equal to ten per centum of the
total amount of tax payments deferred pursuant to this section shall be
added to the amount of tax otherwise assessed and payable in each such
tax year on the property subject to such deferral.
The following table shall illustrate the computation of deferral and
payment of taxes for commercial construction work in a deferral area:
Tax year following
effective date of
certificate of
eligibility: Amount of tax payments to be deferred or paid:
1 through 3 ......Deferral of tax payment on 100% of the exemption base
4 ................ Deferral of tax payment on 80% of the exemption base
5 ................ Deferral of tax payment on 60% of the exemption base
6 ................ Deferral of tax payment on 40% of the exemption base
7 ................ Deferral of tax payment on 20% of the exemption base
8 through 10 ..... No tax payments are to be deferred and no deferred
tax payments are required to be made
11 through 20 .... Payment each year of 10% of total dollar amount of
tax payments deferred pursuant to this part
e. A recipient who, following the effective date of a certificate of
eligibility, has performed renovation construction work in a renovation
exemption area shall be eligible for an exemption from real property
taxes as follows: For the first eight tax years, the recipient shall be
exempt from taxation on one hundred per centum of the exemption base.
For the following four tax years, the recipient shall be exempt from
taxation on a percentage of the exemption base beginning at eighty per
centum thereof in the ninth tax year and decreasing by twenty per centum
of said exemption base each year.
The following table shall illustrate the computation of the exemption
for renovation construction work in a renovation exemption area:
Tax year following effective
date of certificate
of eligibility: Amount of exemption:
1 through 8 .............. Tax on 100% of exemption base
9 ......................... Tax on 80% of exemption base
10 ........................ Tax on 60% of exemption base
11 ........................ Tax on 40% of exemption base
12 ........................ Tax on 20% of exemption base
e.1. A recipient who, following the effective date of a certificate of
eligibility, constructs a new building or structure that meets the
A. 10030 250
requirements set forth in subdivision i of section 11-259 of this part
in the new construction exemption area specified in paragraph one, two
or three of subdivision e of section 11-258 of this part shall be eligi-
ble for an exemption from real property taxes as follows: for the first
four tax years, the recipient shall be exempt from taxation on one
hundred per centum of the exemption base. For the following four tax
years, the recipient shall be exempt from taxation on a percentage of
the exemption base beginning at eighty per centum thereof in the fifth
tax year and decreasing by twenty per centum of said exemption base each
year.
The following table shall illustrate the computation of the exemption
for the construction of a new building or structure that meets the
requirements set forth in subdivision i of section 11-259 of this part
in the new construction exemption area specified in paragraph one, two
or three of subdivision e of section 11-258 of this part:
Tax year following effective
date of certificate
of eligibility: Amount of exemption:
1 through 4 .............. Tax on 100% of exemption base
5 ......................... Tax on 80% of exemption base
6 ......................... Tax on 60% of exemption base
7 ......................... Tax on 40% of exemption base
8 ......................... Tax on 20% of exemption base
f. There shall be no exemption from or deferral of payment of real
property taxes available pursuant to this part to any person who
performs commercial or renovation construction work in an excluded area.
g. The benefits of this part shall be granted exclusively for indus-
trial, commercial or renovation construction work described in approved
plans. No benefits shall be granted for residential construction work.
Any parcel which is partly located in an excluded area shall be deemed
to be entirely located in such area.
h. No benefits pursuant to this part shall be granted for work which
is the subject of a certificate of eligibility issued pursuant to part
three of this subchapter.
§ 11-258 Temporary commercial incentive area boundary commission;
classes of area; excluded areas. a. There shall be a temporary commer-
cial incentive area boundary commission to consist of the deputy mayor
for economic development and planning, the commissioner of finance, the
chair of the city planning commission, the director of management and
budget, the borough presidents, the speaker of the city council and a
public member appointed by the mayor to serve at the mayor's pleasure.
Each member except the public member shall have the power to designate
an alternate to represent him or her at commission meetings to exercise
all the rights and powers of such member, including the right to vote,
provided that such designation be made in writing to the chair of the
commission. The deputy mayor for economic development and planning shall
be the chair of the commission. Each borough president shall be entitled
to vote only on the designation of areas within his or her borough.
Commission members who shall be officers or employees of the city shall
serve without compensation but shall be reimbursed for expenses neces-
sarily incurred in the performance of their duties. Any other commission
member shall receive as exclusive compensation for his or her services
one hundred dollars per diem, provided, however, that the total compen-
sation paid to any such member shall not exceed twelve hundred dollars
A. 10030 251
for any calendar year. A majority of members of such commission entitled
to vote on a matter shall constitute a quorum for such issue. Decisions
shall be made by majority vote of those present entitled to vote on a
matter.
b. (1) The commission shall meet in nineteen hundred ninety-two, nine-
teen hundred ninety-five and nineteen hundred ninety-nine to determine
the boundaries of the various areas which it is authorized to designate
pursuant to this section. The areas designated by the commission in
effect as of December thirty-first, nineteen hundred ninety-one shall
remain in effect until the first taxable status date after the city
council approves a new designation pursuant to paragraph four of this
subdivision.
(2) Not later than October first of each year when areas are to be
designated, the commission shall publish notice of proposed boundaries
of areas to be designated, and the date, not earlier than five nor later
than fifteen days following the publication of such notice, on which the
commission will hold a public hearing to hear all persons interested in
the designation of areas. The notice required by this paragraph shall be
published in the City Record and a newspaper of general circulation in
the city, and copies thereof shall be forwarded to each council member
and community board.
(3) The commission shall make such designation, and notify the city
council of such designation, not later than November first of each year
when areas are to be designated. The designation shall be effective as
provided in paragraph four of this subdivision.
(4) Within thirty days after the first stated meeting of the city
council following the receipt of notice of such designation, the city
council may, by majority vote, disapprove such designation. If, within
such thirty-day period, the city council fails to act or fails to act by
the required vote, the city council shall be deemed to have approved
such designation. Such designation shall be effective as of the first
taxable status date after the city council approves such designation and
shall remain in effect until the first taxable status date after the
city council approves a new designation pursuant to this paragraph.
c. (1) The commission may designate any area other than the area lying
south of the center line of ninety-sixth street in the borough of
Manhattan to be a special exemption area if it determines that market
conditions in the area are such that the availability of a special
exemption is required in order to encourage commercial construction work
in such area. In making such determination, the commission shall consid-
er, among other factors, the existence in such area of a special need
for commercial and job development, high unemployment, economic distress
or unusually large numbers of vacant, underutilized, unsuitable or
substandard structures, or other substandard, unsanitary, deteriorated
or deteriorating conditions, with or without tangible blight.
(2) Any area in the city, which the commission has not designated as a
special exemption area shall be a regular exemption area.
(3) On or after January first, nineteen hundred ninety-two, the
commission shall not designate any area to be either a deferral area or
an excluded area, nor shall the commission make any new designation in
any urban renewal area designated pursuant to article fifteen of the
general municipal law so as to reduce the level of benefits available
pursuant to this title in such area.
(4) Notwithstanding any other provision of this part, any area in the
city designated as an empire zone in accordance with article eighteen-b
of the general municipal law, which the commission has not designated as
A. 10030 252
a special exemption area, shall be a special exemption area as of July
first, nineteen hundred ninety-five or as of the date of the designation
of such area as an empire zone, whichever is later.
§ 11-259 Eligibility for benefits. a. A recipient of a certificate of
eligibility with an effective date of June thirtieth, nineteen hundred
ninety-two or before must make one-half the minimum required expenditure
within eighteen months of the effective date of such recipient's certif-
icate of eligibility, and make the minimum required expenditure within
thirty-six months of the effective date of such certificate to be eligi-
ble to receive the benefits of this part. A recipient of a certificate
of eligibility with an effective date of July first, nineteen hundred
ninety-two or after must make one-half the minimum required expenditure
within thirty months of the effective date of such recipient's certif-
icate of eligibility, and make the minimum required expenditure within
sixty months of the effective date of such certificate to be eligible to
receive the benefits of this part. Any recipient who shall fail to make
such expenditures shall become ineligible and shall pay, with interest,
any taxes for which an exemption or deferral was claimed pursuant to
this section. This subdivision shall not apply to the recipient of a
certificate of eligibility for construction of a new building or struc-
ture that meets the requirements set forth in subdivision i of section
11-259 of this part in a new construction exemption area.
b. No benefits pursuant to this part shall be granted for construction
work on any condominium unit unless such unit is in a building or struc-
ture which, if viewed as a whole and as if it were under single owner-
ship, would qualify as commercial or industrial property. The minimum
required expenditure applicable to any recipient of a certificate of
eligibility for construction work on a condominium unit shall be equal
to the minimum expenditure which would apply if a certificate of eligi-
bility were issued for construction work on the entire property where
such unit is located. Nothing in this subdivision shall be construed to
prevent owners of condominium units in the same property from forming an
association to be a recipient. This subdivision shall not apply to any
applicant whose property would be, or recipient whose property is, the
subject of a certificate of eligibility with an effective date of July
first, nineteen hundred ninety-two or after.
c. No benefits pursuant to this part shall be granted for any
construction work unless the applicant filed an application for such
benefits on or before the date of issuance of a building permit for such
work. The requirements of this subdivision may be satisfied where the
applicant's architect, contractor or other representative authorized to
file the application for such building permit files with the department
of finance on behalf of the applicant a preliminary application contain-
ing such information as the department of finance shall prescribe by
regulation.
d. No benefits pursuant to this part shall be granted to any recipient
for construction work on property any part of which is to be used for a
restricted activity.
e. No benefits pursuant to this part shall be granted for any
construction work unless the applicant shall file, together with the
application, an affidavit setting forth the following information:
(1) a statement that within the seven years immediately preceding the
date of application for a certificate of eligibility, neither the appli-
cant, nor any person owning a substantial interest in the property as
defined in paragraph four of this subdivision, nor any officer, director
or general partner of the applicant or such person was finally adjudi-
A. 10030 253
cated by a court of competent jurisdiction to have violated section two
hundred thirty-five of the real property law or any section of article
one hundred fifty of the penal law or any similar arson law of another
state with respect to any building, or was an officer, director or
general partner of a person at the time such person was finally adjudi-
cated to have violated such law;
(2) a statement setting forth any pending charges alleging violation
of section two hundred thirty-five of the real property law or any
section of article one hundred fifty of the penal law or any similar
arson law of another jurisdiction with respect to any building by the
applicant or any person owning a substantial interest in the property as
defined in paragraph four of this subdivision, or any officer, director
or general partner of the applicant or such person; and
(3) a statement that the applicant has posted notice in a conspicuous
place at the premises which are the subject of the application and
published notice in a newspaper of general circulation in the city, in
such form as shall be prescribed by the department of finance, stating
that persons having information concerning any violation by the appli-
cant or a person having a substantial interest in the property as
defined in paragraph four of this subdivision has violated section two
hundred thirty-five of the real property law or any section of article
one hundred fifty of the penal law or any similar arson law of another
jurisdiction may submit such information to the department of finance to
be considered in determining the applicant's eligibility for benefits.
(4) "Substantial interest" as used in this subdivision shall mean
ownership and control of an interest of ten per centum or more in a
property or of any person owning a property.
f. If any person described in the statement required by paragraph two
of subdivision e of this section is finally adjudicated by a court of
competent jurisdiction to be guilty of any charge listed in such state-
ment, the recipient shall cease to be eligible for benefits pursuant to
this part and shall pay with interest any taxes for which an exemption,
abatement or deferral was claimed pursuant to this part.
g. In addition to any other qualifications for exemption from or
abatement or deferral of payment of taxes set forth in this part, an
applicant must be:
(1) obligated to pay real property tax on the property for which an
exemption, abatement or deferral is sought, whether such obligation
arises because of record ownership of such property, or because the
obligation to pay such tax has been assumed by contract; or
(2) the record owner or lessee of property which is exempt from real
property taxation who has entered into an agreement to sell or lease
such property to another person. Such person shall be a co-applicant
with such owner or lessee.
h. A co-applicant with a public entity shall be an eligible recipient
pursuant to this part, provided that for such period as the property
which is the subject of the certificate of eligibility is exempt from
real property taxation because it is owned or controlled by a public
entity no benefits shall be available to such recipient pursuant to this
part. Such recipient shall receive benefits pursuant to this part when
such property ceases to be eligible for exemption pursuant to other
provisions of law, as follows: the recipient shall, commencing with the
date such tax exemption ceases, and continuing until the expiration of
the benefit period pursuant to this part, receive the benefits to which
such recipient is entitled in the corresponding tax year pursuant to
this part.
A. 10030 254
i. (1) No benefits pursuant to this part shall be granted for
construction of a new building or structure in a new construction
exemption area unless such building or structure meets the requirements
set forth in subparagraphs two and three of this paragraph and, in addi-
tion, meets at least two of the five requirements set forth in subpara-
graphs four through eight of this paragraph.
(2) The height of at least fifty per centum of the floors in such
building or structure shall be not less than twelve feet, nine inches
measured from the top of the slab comprising the floor to the bottom of
the slab comprising the ceiling;
(3) Such building or structure shall be served by fiber optic telecom-
munications wiring and shall contain vertical penetrations for the
distribution of fiber optic cabling to individual tenants on each floor;
(4) The total square footage of such building or structure is not less
than five hundred thousand gross square feet;
(5) A minimum of two hundred thousand gross square feet or twenty-five
per centum of such building or structure is comprised of floors of not
less than forty thousand gross square feet;
(6) At least ten per centum of the gross square footage of such build-
ing or structure is comprised of floors that contain no more than eight
structural columns, excluding any columns within the core or on the
periphery of such building or structure;
(7) The electrical capacity of such building or structure is not less
than six watts per net square foot;
(8) Emergency backup power sufficient to accommodate a need of six
watts per net square foot is available in at least two hundred thousand
gross square feet or twenty-five per centum of such building or struc-
ture.
j. No benefits pursuant to this part shall be granted for construction
work performed pursuant to a building permit issued after July thirty-
first, two thousand eight, except that if a building permit is issued on
or before July thirty-first, two thousand eight for construction work on
a building or structure described in an application for a certificate of
eligibility filed on or before June thirtieth, two thousand eight,
construction work performed as described in such application pursuant to
any additional building permit issued on or after August first, two
thousand eight shall be eligible for benefits pursuant to this part in
accordance with this subdivision.
(1) Except as provided in paragraph two of this subdivision, all
construction work performed pursuant to any such application shall be
completed on or before December thirty-first, two thousand thirteen. No
benefits shall be granted for construction work performed after such
date, and any exemption granted pursuant to this part in relation to
property on which such construction work was performed shall not exceed
the amount of the exemption in effect for such property on the tax roll
for which the taxable status date is January fifth, two thousand four-
teen.
(2) All construction work performed pursuant to any such application
for the construction of a new building or structure in the new
construction exemption area specified in paragraph three of subdivision
e of section 11-258 of this part shall be completed in accordance with
paragraph four of subdivision i of this section and, if not completed in
accordance with such subparagraph, shall not be eligible for benefits
pursuant to this part.
(3) For purposes of this subdivision, construction work as described
in an application for a certificate of eligibility shall be deemed
A. 10030 255
completed on the date on which the department of buildings issues a
temporary or final certificate of occupancy or, if such construction
work does not require the issuance of a certificate of occupancy, the
date on which the applicant and the applicant's architect or profes-
sional engineer for such construction work submit to the department of
finance an affidavit certifying that such construction work has been
completed. For purposes of this subdivision, a demolition permit shall
be deemed to be a building permit issued for construction work.
§ 11-260 Application for certificate of eligibility. a. Application
for a certificate of eligibility pursuant to this part may be made imme-
diately and continuing until June thirtieth, two thousand eight; and
provided, further, however, that no benefits pursuant to this part shall
be granted for construction work performed pursuant to a building permit
issued after July thirty-first, two thousand eight. Such application
shall state whether it is for industrial, commercial or renovation
construction work, and shall be filed with the department of finance. In
addition to any other information required by such department, the
application shall include cost estimates or bids for the proposed
construction and an affidavit of a professional engineer or architect of
the applicant's choice, certifying that detailed plans for the
construction work have been submitted to the department of buildings.
Such application shall also state that the applicant agrees to comply
with and be subject to the rules issued from time to time by the depart-
ment of finance to secure compliance with all applicable city, state and
federal laws or which implement mayoral directives and executive orders
designed to ensure equal employment opportunity. Such application shall
also certify that all taxes currently due and owing on the property
which is the subject of the application have been paid or are currently
being paid in timely installments pursuant to written agreement with the
department of finance.
b. The burden of proof shall be on the applicant to show by clear and
convincing evidence that the requirements for granting an exemption from
or abatement or deferral of payment of taxes pursuant to this part have
been satisfied. The department of finance shall have the authority to
require that statements in connection with the application be made under
oath.
c. Upon receipt of an application, the department of finance shall
send written notice thereof to the council member representing the
district where the proposed construction work is to take place.
d. The department of finance shall issue a certificate of eligibility
upon determining that the applicant satisfies the requirements for
industrial, commercial or renovation construction work in an area where
benefits are available for such work. Such certificate shall state
whether such benefits are to be granted for industrial, commercial or
renovation construction work, and in which class of area the property is
located. The effective date of such certificate, except as provided in
paragraph two or paragraph four of subdivision c of section 11-259 of
this part, shall be the earlier of (1) the date on which a building
permit for the construction work is issued by the department of build-
ings, or (2) the last day before the effective date of any designation
of boundaries by the commission which changes the class of area in which
the property is located so as to reduce the level of benefits for
commercial construction work on such property. Where the effective date
of the certificate of eligibility is July first, nineteen hundred nine-
ty-two or after, the benefits granted for industrial, commercial or
renovation construction work pursuant to this part shall be in accord-
A. 10030 256
ance with the provisions of this part. Where the effective date of the
certificate of eligibility is June thirtieth, nineteen hundred ninety-
two or before, the benefits granted for industrial or commercial
construction work pursuant to this part shall be in accordance with the
provisions of this part as it was in effect until June thirtieth, nine-
teen hundred ninety-two. No recipient whose property is the subject of
a certificate of eligibility for commercial construction work in a
deferral area shall be eligible to apply for a certificate of eligibil-
ity for renovation construction work on the same property, where the
renovation construction work is the same as, or similar to, the commer-
cial construction work for which the deferral area certificate was
issued, until three years after the effective date of the deferral area
certificate. No recipient shall receive a tax deferral and a tax
exemption for the same expenditure on eligible construction work.
e. A copy of the certificate of eligibility shall be filed by the
department of finance in the manner prescribed for recording a mortgage
pursuant to section two hundred ninety-one-d of the real property law.
f. The department of finance may provide by rule for reasonable admin-
istrative charges or fees necessary to defray expenses in administering
the benefit program provided by this part.
§ 11-261 Reporting requirement; termination of benefits. a. Upon
approval by the department of buildings of the plans submitted in
connection with the building permit and any amendments to such plans,
the recipient shall file with the department of finance a narrative
description of such approved plans describing the industrial, commercial
or renovation construction work for which such recipient seeks benefits
pursuant to this part.
b. For the duration of the benefit period the recipient shall file
annually with the department of finance, on or before the taxable status
date, a certificate of continuing use stating the purposes for which the
property described in the certificate of eligibility is being used and
the net square footage allotted to each such purpose. Such certificate
of continuing use shall be on a form prescribed by the department of
finance and shall state the total number of workers employed on the
property and the number of such workers who are city residents. The
department of finance shall have authority to terminate benefits pursu-
ant to this part upon failure of a recipient to file such certificate by
the taxable status date. The burden of proof shall be on the recipient
to establish continuing eligibility for benefits and the department of
finance shall have the authority to require that statements made in such
certificate shall be made under oath.
c. A recipient shall file an amendment to the latest certificate of
continuing use prior to (1) converting square footage within property
which is the subject of a certificate of eligibility for industrial
construction work from use for the manufacturing activities described in
such certificate of continuing use where such conversion results in less
than sixty-five per centum of total net square footage being used or
held out for use for manufacturing activities; or (2) converting any
portion of property which is the subject of a certificate of eligibility
to use for any restricted activity or as residential property.
d. No later than eighteen months after the effective date of a certif-
icate of eligibility with an effective date of June thirtieth, nineteen
hundred ninety-two or before, the recipient shall present evidence to
the department of finance demonstrating that the recipient has made
one-half of the minimum required expenditure. Not later than thirty-six
months after the effective date of such certificate, such recipient
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shall present evidence to such department demonstrating that the recipi-
ent has made the minimum required expenditure. Not later than thirty
months after the effective date of a certificate of eligibility with an
effective date of July first, nineteen hundred ninety-two or after, the
recipient shall present evidence to the department of finance demon-
strating that the recipient has made one-half of the minimum required
expenditure. Such evidence shall be presented in the form and manner
prescribed by such department. The burden of proof shall be on the
recipient to show by clear and convincing evidence that the required
expenditures have been made. This subdivision shall not apply to the
recipient of a certificate of eligibility for construction of a new
building or structure that meets the requirements set forth in subdivi-
sion i of section 11-259 of this part in a new construction exemption
area.
e. A recipient of a certificate of eligibility for construction of a
new building or structure in a new construction exemption area shall
present evidence to the department of finance demonstrating that the
requirements of subdivision i of section 11-259 of this part have been
met. Such evidence shall be presented in the form and manner and at the
time prescribed by such department. The burden of proof shall be on the
recipient to show by clear and convincing evidence that such require-
ments have been met.
§ 11-262 Conversion of property. a. Any recipient whose property is
the subject of a certificate of eligibility for commercial or renovation
construction work, and who, prior to the expiration of the benefit peri-
od, uses such property as industrial property, shall continue to receive
benefits for commercial or renovation construction work as the case may
be.
b. Any recipient whose property is the subject of a certificate of
eligibility for industrial construction work, and who, prior to the
expiration of the benefit period, uses such property as commercial prop-
erty, shall cease to be eligible for further exemption or abatement for
industrial construction work as of the last date to which such recipient
proves by clear and convincing evidence that such property was used as
industrial property, and shall pay with interest any taxes for which an
exemption or abatement was claimed after such date, except that:
(1) a recipient of a certificate of eligibility for industrial
construction work in a special exemption area who would have been eligi-
ble to receive a certificate of eligibility for commercial construction
work at the time such recipient applied for benefits shall continue to
receive an exemption for industrial construction; and
(2) a recipient of a certificate of eligibility for industrial
construction work in a regular exemption area who would have been eligi-
ble to receive a certificate of eligibility for commercial construction
work at the time such recipient applied for benefits shall, commencing
with the date of conversion to commercial property and continuing until
the expiration of the benefit period for commercial construction work,
receive any exemption which such recipient would have received in the
corresponding tax year pursuant to a certificate of eligibility for
commercial construction work; and
(3) a recipient of a certificate of eligibility for industrial
construction work in any area of the city on whose property at least
sixty-five per centum of the net square footage continues to be used or
held out for use for manufacturing activities after conversion to
commercial property, shall not be required to pay the pro rata share of
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tax for which an exemption was claimed during the tax year in which such
conversion occurred.
c. Except as provided in subdivision d of this section, any recipient
whose property is the subject of a certificate of eligibility for
commercial, industrial or renovation construction work, and who uses
such property as residential property or for any restricted activity
prior to the expiration of the benefit period, shall cease to be eligi-
ble for further exemption, abatement or deferral as of the date such
property was first used as residential property or for any restricted
activity. In the case of property in an area that was designated as an
exemption area at the time the certificate of eligibility was issued,
such recipient shall pay with interest any taxes for which an exemption
was claimed after such date, including the pro rata share of tax for
which any exemption was claimed during the tax year in which such use
occurred. In the case of industrial property, such recipient shall pay
with interest any taxes for which an exemption or abatement was claimed
after such date, including the pro rata share of tax for which any
exemption or abatement was claimed during the tax year in which such use
occurred. In the case of property in an area that was designated as a
deferral area at the time the certificate of eligibility was issued, all
deferred tax payments on the property shall become due and payable imme-
diately.
d. Notwithstanding subdivision c of this section, any recipient whose
property is the subject of a certificate of eligibility for commercial
or renovation construction work with an effective date of July first,
nineteen hundred ninety-two or after, and who, prior to the expiration
of the benefit period, uses a portion of such property as residential
property, shall cease to be eligible for further exemption for commer-
cial or renovation construction work for that portion of such property
used as residential property as of the date such portion of the property
was first used as residential property. Such recipient shall pay, with
interest, any taxes for which an exemption was claimed after such date
attributable to that portion of the property used as residential proper-
ty, including the pro rata share of tax for which such exemption was
claimed during the tax year in which such use occurred. Such recipient
shall continue to receive an exemption for commercial or renovation
construction work for that portion of the property which continues to be
used as commercial property.
§ 11-263 Administration of the benefit program. The department of
finance shall have, in addition to any other functions, powers and
duties which have been or may be conferred on it by law, the following
functions, powers and duties:
(1) To publicize the availability of benefits pursuant to this part
for industrial, commercial and renovation construction work.
(2) To receive and review applications for certificates of eligibil-
ity, issue such certificates where authorized pursuant to section 11-260
of this part, and record the issuance of such certificates as prescribed
in such section.
(3) To receive evidence of expenditures made for construction, and
where such expenditures do not equal the amount required to qualify for
exemption from or abatement or deferral of tax payments to take appro-
priate action, including but not limited to denying, reducing, suspend-
ing, terminating or revoking benefits pursuant to this part.
(4) To enter and inspect property to determine whether it is indus-
trial or commercial or mixed-use and to determine whether (a) any such
property is being used for any restricted use, or (b) any property which
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is the subject of a certificate of eligibility for industrial
construction work is being used as commercial property, or (c) any
industrial or commercial property is being used as residential or mixed-
use property, or (d) all or part of the nonresidential portion of mixed-
use property is being used as residential property.
(5) To collect all real property taxes for which payment is deferred
pursuant to this part.
(6) To collect all real property taxes, with interest, due and owing
as a result of reduction, suspension, termination or revocation of any
exemption from or abatement or deferral of taxes granted pursuant to
this part.
(7) To make and promulgate regulations to carry out the purposes of
this part including, but not limited to, regulations requiring appli-
cants to publish notice of their applications, defining manufacturing
and commercial activities and specifying the nature of work for which
expenses may be included in the minimum required expenditure, provided,
however, that any regulation increasing the minimum required expenditure
shall not apply to any person who is a recipient on the effective date
of such regulation. Such regulations shall include a requirement that
with respect to the construction work recipients and their contractors
shall be equal opportunity employers and shall also provide that persons
employed in the construction work shall implement a training program for
economically disadvantaged persons enrolled or eligible to be enrolled
in training programs approved by the department of labor, with partic-
ular reference to city residents.
§ 11-264 Tax lien; interest rate. a. All taxes plus interest required
to be paid retroactively pursuant to this part shall constitute a tax
lien as of the date it is determined such taxes and interest are owed.
All interest shall be calculated from the date the taxes would have been
due but for the exemption, abatement or deferral claimed pursuant to
this part at three per centum above the applicable rate of interest
imposed by the city generally for non-payment of real property tax on
such date.
b. All taxes for which payment is deferred pursuant to section 11-257
of this part shall constitute a tax lien as of the date they are due and
payable in accordance with the provisions of that section.
§ 11-265 Penalties for non-compliance, false statements and omissions.
a. The department of finance may deny, reduce, suspend, revoke or termi-
nate any exemption from or abatement or deferral of tax payments pursu-
ant to this part whenever:
(1) a recipient fails to comply with the requirements of this part or
the rules and regulations promulgated by the department of finance
pursuant thereto; or
(2) an application, certificate, report or other document delivered by
an applicant or recipient hereunder contains a false or misleading
statement as to a material fact or omits to state any material fact
necessary in order to make the statements therein not false or mislead-
ing, and may declare any applicant or recipient who makes such false or
misleading statement or omission to be ineligible for future exemption,
abatement or deferral pursuant to this part for the same or other prop-
erty.
b. Notwithstanding any other law to the contrary, a recipient shall be
personally liable for any taxes owed pursuant to this part whenever such
recipient fails to comply with such law and rules or makes such false or
misleading statement or omission, and the department of finance deter-
mines that such act was due to the recipient's willful neglect, or that
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under the circumstances such act constituted a fraud on the department
of finance or a buyer or prospective buyer of the property. The remedy
provided herein for an action in personam shall be in addition to any
other remedy or procedure for the enforcement of collection of delin-
quent taxes provided by any general, special or local law. Any lease
provision which obligates a tenant to pay taxes which become due because
of willful neglect or fraud by the recipient, or otherwise relieve or
indemnify the recipient from any personal liability arising hereunder,
shall be void as against public policy except where the imposition of
such taxes or liability is occasioned by actions of the tenant in
violation of the lease.
§ 11-266 Code violations; suspension of benefits. a. If a court, or
the environmental control board of the preceding municipality with
respect to matters within its jurisdiction, finds that at the property
which is the subject of a certificate of eligibility there has been a
violation of any of the provisions of the building, fire and air
pollution control codes of the preceding municipality set forth in
subdivision b of this section, all benefits pursuant to such certificate
shall be suspended unless within one hundred eighty days after the
department of finance has sent notice of such finding to the recipient,
and all other persons having a financial interest in the property who
have filed a timely request for such notice in such form as may be
prescribed by the department of finance, the recipient submits to the
department of finance, certification from the department of buildings,
the fire department or the department of environmental protection
respectively that the underlying code violation has been cured. If the
recipient fails to submit the required certification within the one
hundred eighty day period, the period of suspension shall be effective
retroactively to the time of the finding by the court or the environ-
mental control board. The suspension of benefits shall continue until
the recipient submits to the department of finance the required certif-
ication that the violation has been cured.
If the original finding of violation or the denial of certification is
appealed and a court or appropriate governmental agency finally deter-
mines that the finding of violation or denial of certification was
invalid, any benefits lost pursuant to this section to which the recipi-
ent was entitled shall be restored retroactively.
As applied to a recipient who is eligible for deferral of tax payments
pursuant to subdivision d of section 11-257 of this part, suspension of
benefits shall be deferred by operation of such section and interest at
the rate charged by the department of finance for overdue taxes shall be
charged on the amount of any tax payments already deferred by operation
of such section. The interest charged shall accrue from the beginning of
the period of suspension.
b. The provisions of subdivision a of this section shall apply to
violations of the following provision of the code of the preceding muni-
cipality:
(1) section 27-4260 of the preceding municipality;
(2) section 27-4265 of the preceding municipality;
(3) section 27-4267 of the preceding municipality;
(4) section 27-954 of the preceding municipality;
(5) section 27-339 of the preceding municipality;
(6) subdivision (c) of section 27-353 of the preceding municipality;
(7) paragraph twelve of subdivision (f) of section 27-972 of the
preceding municipality;
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(8) paragraph ten of subdivision (g) of section 27-972 of the
preceding municipality;
(9) subdivision (c) of section 27-975 of the preceding municipality;
(10) subdivision (c) of section 27-989 of the preceding munici-
pality;
(11) the following provisions to the extent applicable to cabarets
as defined in article two of subchapter two of the building code of
the preceding municipality:
(a) section 27-542 of the preceding municipality;
(b) subparagraph d of paragraph two of subdivision (b) of section
27-547 of the preceding municipality;
(c) paragraph three of subdivision (a) of section 27-549 of the
preceding municipality;
(d) subdivision (b) of section 27-549 of the preceding municipality;
(12) section 27-127 of the preceding municipality when the violation
concerns an unsafe condition on a facade of a building which exceeds
six stories in height;
(13) section five hundred one of reference standard 13-1 of the
preceding municipality;
(14) section one thousand three of reference standard 13-1 of the
preceding municipality;
(15) paragraph six of subdivision (b) of section 24-178 of the
preceding municipality; and
(16) section 24-185 of the preceding municipality.
§ 11-267 Annual report. The department of finance shall submit an
annual report to the council, on April first of each year, concerning
the status of the program established pursuant to this part and its
effects in the city, including information on certificates of eligibil-
ity issued and jobs created in each area where benefits are available.
CHAPTER 3
TAX LIENS AND TAX SALES
§ 11-301 When taxes, assessments, sewer rents, sewer surcharges and
water rents to be liens on land assessed. All taxes and all assessments
and all sewer rents, sewer surcharges and water rents, and the interest
and charges thereon, which may be laid or may have heretofore been laid,
upon any real estate now in the city, shall continue to be, until paid,
a lien thereon, and shall be preferred in payment to all other charges.
The words "water rents" whenever they are used in this chapter shall
include uniform annual charges and extra and miscellaneous charges for
the supply of water, charges in accordance with meter rates, minimum
charges for the supply of water by meter, annual service charges and
charges for meters and their connections and for their setting, repair
and maintenance, penalties and fines and all lawful charges for the
supply of water imposed pursuant to the New York city municipal water
finance authority act, which is set forth in title two-A of article five
of the public authorities law. Charges for expense of meters, their
connections, setting, repair or maintenance shall not be due or become a
charge or lien on the premises where a water meter shall be installed or
against which a charge shall be made, until such charge shall have been
definitely fixed by the commissioner of environmental protection, and an
entry of the amount thereof shall have been made with the date of such
entry in the book in which the charges for water supplied by meter
against such premises are to be entered. A charge in accordance with
meter rates or minimum charges for the supply of water measured by
meter, and a service charge shall not be due or become a lien or charge
upon the premises where such meter is installed until an entry shall
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have been made indicating that such premises are metered, with the date
of such entry in the book in which the charges for water by meter meas-
urement against such premises are to be entered. The words "sewer rents"
when used in this chapter shall mean any rents or charges imposed pursu-
ant to section 24-514 of the code of the preceding municipality or
pursuant to the New York city municipal water finance authority act,
which is set forth in title two-A of article five of the public authori-
ties law. The words "sewer surcharges" when used in this chapter shall
mean the charges imposed pursuant to section 24-523 of the code of the
preceding municipality or pursuant to the New York city municipal water
finance authority act, which is set forth in title two-A of article five
of the public authorities law. Whenever an increase in the amount of
uniform annual charges or extra or miscellaneous charges shall have been
made or a charge shall have been made for water services for any build-
ing completed subsequent to the first day of January in each year, the
amount of such increase of the charge or new charge for such new build-
ing shall not be due or become a lien or charge against the premises
until the amounts thereof shall have been entered with the date of such
entries, respectively, in the books in which the uniform annual charges
and extra or miscellaneous charges against such premises are to be
entered. The words "tax lien" when used in this chapter shall mean the
lien arising pursuant to the provisions of this chapter or pursuant to
the New York city municipal water finance authority act, which is set
forth in title two-A of article five of the public authorities law, as a
result of the nonpayment of taxes, assessments, sewer rents, sewer
surcharges, water rents, any other charges that are made a lien subject
to the provisions of this chapter, the costs of any advertisements and
notices given pursuant to this chapter, any other charges that are due
and payable, a surcharge pursuant to section 11-332 of this chapter if
the tax lien is sold, interest and penalties thereon and the right of
the city to receive such amounts. The words "tax lien certificate" when
used in this chapter shall mean the instrument evidencing a tax lien and
executed by the commissioner of finance or his or her designee at such
time as such lien is transferred to a purchaser upon sale of such lien
by the city.
§ 11-302 Interest rates not to be reduced. The commissioner of
finance shall not reduce the rate of interest upon any taxes or assess-
ment below the amount fixed by law.
§ 11-302.1 Error in record of payment of tax or assessment. (a) If the
records of the department of finance show a charge as paid due to a
misapplied payment or other error, and the department later corrects the
records, interest shall not be imposed until after the department (i)
corrects the error and (ii) sends a statement of account or other simi-
lar bill or notice stating the amount due and when the charge must be
paid to avoid the accrual of interest.
(b) The provisions of this section shall not apply to an installment
of tax or an assessment for which payment, made electronically, by
check, or by other means, was dishonored.
(c) The provisions of this section shall not apply where the error in
the records of the department was made as a result of fraud or other
criminal conduct by the taxpayer or any person acting on his or her
behalf or at his or her request.
§ 11-303 Arrears to be provided for in assessment rolls. There shall
be ruled in the yearly assessment rolls of the taxes in each section or
ward, a column headed "arrears," in which the commissioner of finance
shall annually before any taxes for the year are collected, cause to be
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entered the word "arrears" opposite to the ward, lot, town, block and
map numbers on which any arrears of taxes, sewer rents, sewer surcharges
or water rents shall be due, or on which any assessment shall remain
unpaid which was due or confirmed one month prior to the first of July,
then last past.
§ 11-304 Bills for taxes to show arrears. There shall be ruled a
column for "arrears" in every bill rendered for taxes for lots on which
such arrears or assessments, sewer rents, sewer surcharges or water
rents, and interest and penalties thereon, may be due as aforesaid, or
may have been sold and yet be redeemable, in which shall be written in a
conspicuous place, "arrears". The columns for arrears indicate lots
sold for arrears, or to be sold therefor; arrears to be paid and lots
redeemed at the office of the city collector.
§ 11-305 Commissioner of finance to publish notice of confirmation of
assessments. It shall be the duty of the commissioner of finance to
give public notice, by advertisement, for at least ten days, in the City
Record and as soon as practicable and within ten days after the confir-
mation of any assessment, that the same has been confirmed, specifying
the title of such assessment, and the date of its confirmation, and also
the date of entry in the record of titles of assessments kept in the
department of finance, addressed as a class to all persons, owners of
property affected by any such assessment, that unless the amount
assessed for benefit on any person or property shall be paid within
ninety days after the date of the entry of any such assessment, interest
shall be thereafter collected thereon as provided in section 11-306 of
this chapter.
§ 11-306 Interest to be charged if assessments unpaid for ninety days;
payment in installments. If any assessment shall remain unpaid for the
period of ninety days after the date of the entry thereof on the record
of titles of assessments, it shall be the duty of the commissioner of
finance or his or her designee to charge, collect and receive interest
thereon, at the rate of seven percent per annum, to be calculated to the
date of payment from the date when such assessment became a lien as
provided by section three hundred fourteen of the New York city charter
in force at the time of the adoption of the New York city charter by
referendum in the year nineteen hundred sixty-one, provided, however,
that the city collector shall accept and credit as payments on account
of assessments now or hereafter levied against any parcel or plot of
property, such sums of money not less than twenty-five dollars or multi-
ples thereof in amount as may be tendered for payment on account of any
assessment now or hereafter levied against any property. Upon requisi-
tion by the commissioner of finance for the assessed valuation of the
property affected by any assessment, the president of the tax commis-
sion, or any tax commissioner duly assigned by him or her, shall forth-
with certify the same to the commissioner of finance.
§ 11-307 Payments in installments of assessments heretofore or here-
after confirmed. Upon the application in writing of the owner of a
parcel of real property affected by an unpaid assessment heretofore or
hereafter confirmed the amount of which is one hundred dollars or more,
the commissioner of finance shall divide the assessment upon such parcel
into fifteen parts or, if the application so requests, into five parts,
as nearly equal as may be, or if the amount of such assessment is fifty
dollars or more but less than one hundred dollars the commissioner of
finance shall divide the assessment upon such parcel into five parts as
nearly equal as may be. One part thereof in any event shall be due and
payable, and in each case as many more of such parts shall be due and
A. 10030 264
payable as years may have elapsed since the entry of such original
assessment for collection. Such parts thereof with interest at the rate
of seven percent per annum on the amount of the assessment unpaid shall
be paid at the time of application as a condition of the extension of
time of payment of the remainder as provided in this section. Upon
payment of such parts and interests, the balance of such assessments
shall cease to be a lien upon such real property except as hereinafter
provided; and the remaining parts shall be paid in annual installments
as herein provided. Of such installments the first, with interest at
the rate of four percent thereon, and on the installments thereafter to
become due, from the date of payment of the parts of such assessment
paid as hereinbefore provided, shall become due and payable and be a
lien on the real property assessed, on the next ensuing anniversary of
the date of entry of the assessment in the record of titles of assess-
ments confirmed; and one, with interest at the rate of four percent per
annum thereon and on the installments thereafter to become due shall
become due and payable and be a lien upon the real property assessed,
annually thereafter. After the time herein specified for annual
installments and interest to become due, the amount of the lien thereon
shall bear interest at the rate of seven percent per annum. Any
installment assessment shall not be further divided into installments.
The first installment of an assessment divided within the ninety-day
period provided by section 11-306 of this chapter during which assess-
ment may be paid without interest shall not be subject to interest, but
the second installment with interest at the rate of four percent per
annum from the original date of entry shall become due and payable and
be a lien upon the real property on the anniversary date of entry of the
assessment and the remaining installments with interest shall become due
and payable and be a lien on the real property as hereinbefore provided.
The installments not due with interest at the rate of four percent per
annum to the date of payment may be paid at any time. The provisions of
this chapter with reference to the sale of tax liens shall apply to the
several unpaid installments and the interest thereon in the same manner
as if each installment and the interest thereon had been imposed as an
assessment payable in one payment, at the time such installment became a
lien. In the event of the acquisition by condemnation by the city for
public purposes any property upon which there are installments not due,
such installments shall become due as of the date of the entry of the
final order of the supreme court or the confirmation of the report of
the commissioners in the condemnation proceedings, and shall be set off
against an award that may be made for the property acquired.
When an award for damage shall accrue to the same person who is or was
at the time the assessment was confirmed liable for the assessments for
benefit on the abutting property in the same proceedings, only the
portion of the assessment in excess of such award may be considered in
levying in installments under the provisions of this section. Except as
provided in this section, no such annual installment shall be a lien or
deemed to be an encumbrance upon the title to the real property assessed
until it becomes due as herein provided.
§ 11-308 Apportionment of assessment. If a sum of money in gross has
been or shall be assessed upon any lands or premises in the city, any
person or persons claiming any divided or undivided part thereof may pay
such part of the sums of money so assessed, also of the interest and
charges due or charged thereon, as the commissioner of finance may deem
to be just and equitable. The remainder of the sum of money so
assessed, together with the interest and charges, shall be a lien upon
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the residue of the land and premises only, and the tax lien upon such
residue may be sold in pursuance of the provisions of this chapter, to
satisfy the residue of such assessment, interest, or charges thereon, in
the same manner as though the residue of such assessment had been
imposed upon such residue of such land or premises.
§ 11-309 Notifying taxpayers of assessments. a. The owner of any lot,
piece or parcel of land in the city of Staten Island or any person
interested in such lot, piece or parcel, may file with the department of
finance, a statement containing a brief description of such land,
together with the section, block and lot number thereof, or such other
identifying information as at the time is established by the department
of finance, and a statement of the applicant's interest therein, togeth-
er with a written request that such lot, piece or parcel of land be
registered in the name of the applicant. In such statement the applicant
shall designate a post office address to which notifications addressed
to such applicant shall be sent. A brief description of such lot, piece
or parcel of land corresponding to the description thereof in the state-
ment so filed, together with the name of the applicant and his or her
post office address and the date of such application, shall thereupon be
registered in the department of finance.
b. As soon as any assessment for a local improvement shall have been
confirmed, including assessments confirmed by a court of record, and the
list thereof shall have been entered and filed in the department of
finance, such assessment list shall be examined and thereupon, within
twenty days after such entry there shall be mailed a notice addressed to
each person in whose name any lot, piece or parcel of land, affected by
such assessment, is registered, at the post office address registered in
the records of the department of finance, which notice shall contain the
brief description of the lot, piece or parcel of land registered in the
name of the person to whom such notice is addressed, together with the
amount assessed thereon, date of entry, and title of the improvement for
which such assessment is made, and a statement of the rate of interest
or penalty imposed for the nonpayment of such assessment, and the date
from which the interest or penalty will be computed. Failure to comply
with the provisions herein however, shall in no manner affect the valid-
ity or collectability of any assessment heretofore or hereafter
confirmed, nor shall any claim arise or exist against the comptroller,
the commissioner of finance, or any officer of the city by reason of
such failure.
c. The commissioner of finance or his or her designee shall for the
purpose of this section provide appropriate records for each section of
the city, included within the respective boroughs, as the same shall
appear upon the tax maps of the city.
§ 11-310 Water charges and sewer rents to be transmitted to commis-
sioner of finance. The commissioner of environmental protection shall
cause to be transmitted to the commissioner of finance an account of all
water rents, charges, fines and penalties and all sewer rents, charges,
fines and penalties as the same become due or accrue.
§ 11-311 Sewer surcharges to be transmitted to commissioner of
finance. The commissioner of environmental protection shall cause to be
transmitted to the commissioner of finance an account of all sewer
surcharges, fines and penalties as the same become due or accrue.
§ 11-312 Water rents; when payable; penalty for nonpayment. a. One-
half (i) the uniform annual water charges and extra and miscellaneous
charges for water not metered and (ii) annual service charges shall
become due and payable, in advance if entered on January first, nineteen
A. 10030 266
hundred seventy-four for the period commencing January first, nineteen
hundred seventy-four and ending June thirtieth, nineteen hundred seven-
ty-four. Commencing on June thirtieth, nineteen hundred seventy-four,
uniform annual water charges and extra and miscellaneous charges for
water not metered and annual service charges shall be due and payable in
advance on the thirtieth day of June in each year, if entered. If any of
such rents and charges which become due and payable on or before June
thirtieth, nineteen hundred seventy-six shall not have been paid to the
commissioner of finance or his or her designee on or before the last day
of the month following the month of entry, it shall be the duty of the
commissioner of finance or his or her designee to charge, collect and
receive interest thereon to be calculated at the rate of seven percent
per annum from the date when such rents and charges became due and paya-
ble to December thirty-first, nineteen hundred seventy-six, and at the
rate of fifteen percent per annum from January first, nineteen hundred
seventy-seven to the date of payment. If any of such rents and charges
which shall become due and payable on or after June thirtieth, nineteen
hundred seventy-seven are not paid to the commissioner of finance or his
or her designee on or before the last day of the month following the
month of entry, it shall be the duty of the commissioner of finance or
his or her designee to charge, collect and receive interest thereon to
be calculated at the rate of fifteen percent per annum from the date
when such rents and charges became due and payable to the date of
payment. If not so entered and payable, but entered at any time subse-
quent thereto, they shall be due and payable when entered and notice
thereof shall be mailed within five days of such entry to the premises
against which they are imposed addressed to either the owner or the
occupant and, if entered on or before December thirty-first, nineteen
hundred seventy-six but not paid on or before the last day of the month
following the month of entry, it shall be the duty of the commissioner
of finance or his or her designee to charge, collect and receive inter-
est thereon to be calculated at the rate of seven percent per annum from
the date of entry to December thirty-first, nineteen hundred seventy-
six, and at the rate of fifteen percent per annum from January first,
nineteen hundred seventy-seven to the date of payment; if entered on or
after January first, nineteen hundred seventy-seven but not paid on or
before the last day of the month following the month of entry, it shall
be the duty of the commissioner of finance or his or her designee to
charge, collect and receive interest thereon to be calculated at the
rate of fifteen percent per annum from the date of entry to the date of
payment.
b. All charges for meters and their connections and for their setting,
repair and maintenance, and all charges in accordance with meter rates
for supply of water measured by meter, including minimum charges for the
supply of water measured by meter, shall be due and payable when
entered, and notice thereof shall be mailed within five days of such
entry stating the amount due and the nature of the rent or charge to the
last known address of the person whose name appears on the record of
such rents and charges as being the owner, occupant or agent or, where
no name appears, to the premises addressed to either the owner or the
occupant, and if entered on or before December thirty-first, nineteen
hundred seventy-six but not paid on or before the last day of the month
following the month of entry, it shall be the duty of the commissioner
of finance or his or her designee to charge, collect and receive inter-
est thereon to be calculated at the rate of seven percent per annum from
the date of entry to December thirty-first, nineteen hundred seventy-
A. 10030 267
six, and at the rate of fifteen percent per annum from January first,
nineteen hundred seventy-seven to the date of payment; if entered on or
after January first, nineteen hundred seventy-seven but not paid on or
before the thirtieth day following the date of entry, it shall be the
duty of the commissioner of finance or his or her designee to charge,
collect and receive interest thereon to be calculated at the rate of
fifteen percent per annum from the date of entry to the date of payment.
§ 11-313 Sewer rents; when payable; penalty for nonpayment. a. As used
in this section:
1. The term "metered premises" shall mean premises, or any part there-
of, (a) to which water is supplied by the municipal water supply system
or by a private water company, and (b) at which the quantity of water
supplied is measured by a water meter.
2. The term "unmetered premises" shall mean premises, or any part
thereof, (a) to which water is supplied by the municipal water supply
system or by a private water company, and (b) at which the quantity of
water supplied is not measured by a water meter.
b. The sewer rents charged against metered premises in accordance with
the provisions of paragraphs two and three of subdivision b of section
24-514 of the code of the preceding municipality and the rules duly
promulgated pursuant to such section, including the minimum rents for
the use of the sewer system, charged pursuant to such section and rules,
and the sewer rents charged against any premises in accordance with the
provisions of paragraphs four and five of subdivision b of section
24-514 of the code of the preceding municipality and rules duly promul-
gated pursuant to such section, including the minimum rents for the use
of the sewer system, charged pursuant to such section and rules shall
become due and shall become a charge or lien on the premises when the
amount thereof shall have been fixed by the commissioner of environ-
mental protection, and an entry thereof shall have been made against
such premises with the date of such entry, in the book in which sewer
rents are to be entered. The sewer surcharges charged against any prem-
ises pursuant to section 24-523 of the code of the preceding munici-
pality shall become due and shall become a charge or lien on the prem-
ises when the amount thereof shall have been fixed by the commissioner
of environmental protection and an entry thereof shall have been made
against such premises in the book in which sewer surcharges are to be
entered. A notice thereof, stating the amount due and the nature of the
rent, surcharge or charge shall be mailed, within five days after such
entry, to the last known address of the person whose name appears upon
the records in the office of the department of finance as being the
owner, occupant or agent or, where no name appears, to the premises
addressed to either the owner or the occupant. If such rent, surcharge
or charge shall have been entered on or before December thirty-first,
nineteen hundred seventy-six but not paid on or before the last day of
the month following the month of entry, it shall be the duty of the
commissioner of finance or his or her designee to charge, collect and
receive interest thereon to be calculated at the rate of seven percent
per annum from the date of entry to December thirty-first, nineteen
hundred seventy-six, and at the rate of fifteen percent per annum from
January first, nineteen hundred seventy-seven to the date of payment; if
entered on or after January first, nineteen hundred seventy-seven but
not paid on or before the thirtieth day following the date of entry, it
shall be the duty of the commissioner of finance or his or her designee
to charge, collect and receive interest thereon to be calculated at the
rate of fifteen percent per annum from the date of entry to the date of
A. 10030 268
payment. The rents or charges for the use of the sewer system charged
during any specified period of time pursuant to the provisions of
section 24-514 of the code of the preceding municipality and the rules
promulgated thereunder shall be computed, in accordance with the
provisions of such section and the rules duly promulgated thereunder, on
the basis of water rents or charges computed for the same period.
c. Sewer rents charged against unmetered premises in accordance with
the provisions of paragraphs two and three of subdivision b of section
24-514 of the code of the preceding municipality and the rules duly
promulgated pursuant to such section, for the use of the sewer system
during the one-year period commencing on the first day of July of each
year, shall be due and payable and shall become a charge or lien on the
premises on the first day of January following such first day of July,
if entered, except that commencing on June thirtieth, nineteen hundred
seventy-four such sewer rents shall be due and payable in advance on the
thirtieth day of June in each year, if entered, and shall become a
charge or lien on the premises on such date. If any of such rents or
charges which became due and payable on or before June thirtieth, nine-
teen hundred seventy-six shall not have been paid to the commissioner of
finance or his or her designee within thirty days after such first day
of January, or, commencing on the thirtieth day of June, nineteen
hundred seventy-four, on or before the last day of the month following
the month of entry, it shall be the duty of the commissioner of finance
or his or her designee to charge, collect and receive interest thereon
to be calculated at the rate of seven percent per annum from the date
when such charges became due and payable to December thirty-first, nine-
teen hundred seventy-six, and at the rate of fifteen percent per annum
from January first, nineteen hundred seventy-seven to the date of
payment. If any of such rents or charges which shall become due and
payable on or after June thirtieth, nineteen hundred seventy-seven are
not paid to the commissioner of finance or his or her designee on or
before the last day of the month following the month of entry, it shall
be the duty of the commissioner of finance or his or her designee to
charge, collect and receive interest thereon to be calculated at the
rate of fifteen percent per annum from the date when such rents or
charges became due and payable to the date of payment. If not so entered
and payable, but entered at any time subsequent thereto, they shall be
due and payable and shall become a charge or lien on the premises when
entered and notice thereof shall be mailed within five days after such
entry, to the last known address of the person whose name appears upon
the records in the department of finance as the owner or the occupant or
if no name appears, to the premises addressed to either the owner or
occupant. If any of such rents or charges which were entered on or
before December thirty-first, nineteen hundred seventy-six but not paid
on or before the last day of the month following the month of entry, it
shall be the duty of the commissioner of finance or his or her designee
to charge, collect and receive interest thereon to be calculated at the
rate of seven percent per annum from the date of entry to December thir-
ty-first, nineteen hundred seventy-six, and at the rate of fifteen
percent per annum from January first, nineteen hundred seventy-seven to
the date of payment; if entered on or after January first, nineteen
hundred seventy-seven but not paid on or before the last day of the
month following the month of entry, it shall be the duty of the commis-
sioner of finance or his or her designee to charge, collect and receive
interest thereon to be calculated at the rate of fifteen percent per
annum from the date of entry to the date of payment. The sewer rents
A. 10030 269
charged against unmetered premises for the use of the sewer system
during the one-year period commencing on the first day of July of each
year shall be computed in accordance with the provisions of section
24-514 of the code of the preceding municipality and the rules duly
promulgated thereunder, upon the basis of water rents or charges
computed for the same period.
d. Whenever an increase in the amount of the sewer rent charged
against unmetered premises shall have been made or a charge shall have
been made for sewer services for any building completed subsequent to
the first day of July in each year, the amount of such increase of the
charge or new charge for such new building shall not be due or become a
lien or charge against the premises until the amounts thereof shall have
been entered with the date of such entries, respectively, in the books
in which sewer rents charged against such premises are to be entered.
e. No later than the twenty-fifth day of May in each year, the banking
commission shall transmit a written recommendation to the council of a
proposed interest rate to be charged for nonpayment of sewer rents. In
making such recommendations the commission shall consider the prevailing
interest rates charged for commercial loans extended to prime borrowers
by commercial banks operating in the city and shall propose a rate of at
least six per centum per annum greater than such rates. The council may
by resolution adopt an interest rate to be charged for nonpayment of
sewer rents pursuant to section 11-224 of the code and, for nonpayment
of sewer rents that become due and payable on or after July first, two
thousand five, pursuant to section 11-224.1 of the code, and may specify
in such resolution the date on which such interest rate is to take
effect.
§ 11-314 Notice of rules and regulations; penalty for nonpayment;
water supply cut off. The rates and charges for supply of water, the
annual service charges and minimum charges, the sewer rents, the sewer
surcharges, the rules and regulations concerning the use of water, all
other rules and regulations affecting users of water or concerning
charges for supply of water, restrictions of the use of water, installa-
tion of meters, and all rules and regulations affecting property
connected with the sewer system, penalties and fines for violations of
rules and regulations shall be printed on each bill and permit so far as
in the judgment of the commissioner of environmental protection they are
applicable. This section and such printing and the printing of this
section on such bills and permits shall be sufficient notice to owners,
tenants or occupants of premises to authorize the imposition and recov-
ery of any charges, surcharges and fines imposed under such rules and
regulations and of any penalties imposed in pursuance of this chapter in
addition to cutting off the supply of water. Where water charges payable
in advance or sewer rents or charges payable as provided in subdivision
c of section 11-313 of this chapter, are not paid within the period
covered by such charges or rents, and a notice of such nonpayment is
mailed by the commissioner of finance to the premises addressed to
"owner or occupant," the commissioner of environmental protection may
shut off the supply of water to such premises. Where water charges not
payable in advance or sewer rents, sewer surcharges or charges payable
as provided in subdivisions b and d of section 11-313 of this chapter
have been made by the department and remain unpaid for more than thirty
days or where the commissioner of environmental protection has certified
that there is a flagrant and continued violation of a provision or
provisions of section 24-523 of the code or of any rule or regulation
promulgated pursuant thereto or of any order of the commissioner of
A. 10030 270
environmental protection issued pursuant thereto, after notice thereof
mailed to the premises addressed to "owner or occupant," the commission-
er of environmental protection may shut off the supply of water to the
premises.
§ 11-315 Enforcement of collection of sewer rents, sewer surcharges
and water rents. Sewer rents, sewer surcharges, charges, penalties and
fines, and interest thereon, and water rents, charges, penalties and
fines, and interest thereon, shall after they are payable to the commis-
sioner of finance or his or her designee be enforced in the manner
provided in this chapter and chapter four of this title. In addition to
collecting sewer rents, sewer surcharges, charges, penalties and fines
and interest thereon and water rents, charges, penalties and fines and
interest thereon in the manner provided in this chapter and chapter four
of this title, the city may maintain an action for their recovery
against the person for whose benefit or by whom the water is taken or
used or for whose benefit or by whom sewer service is used.
§ 11-316 Bills of arrears of taxes, assessments, sewer rents, sewer
surcharges and water rents, any other charges that are made a lien
subject to the provisions of this chapter, and interest and penalties
thereon to be furnished when requested. The commissioner of finance or
his or her designee, upon the written request of the owner, the proposed
vendee under a contract of sale, a mortgagee, any person having a vested
or contingent interest in any lot or lots or their duly authorized
agent, or any person who has made a filing pursuant to section 11-309 of
this chapter shall furnish a bill of all arrears of taxes on any lot or
lots due prior to the first of September, then last past, of sewer
rents, sewer surcharges and water rents, assessments, any other charges
that are made a lien subject to the provisions of this chapter, and
interest and penalties thereon, which are due and payable. Upon the
payment of such bill which shall be called a bill of arrears the receipt
of the commissioner of finance or his or her designee thereon shall be
conclusive evidence of such payment. The commissioner of finance or his
or her designee shall cause to be kept an account of amounts so
collected, and the certificate of the commissioner of finance or his or
her designee, that there are no tax liens on such lot or lots, shall
forever free such lot or lots from all liens of taxes, sewer rents,
sewer surcharges or water rents, assessments, any other charges that are
made a lien subject to the provisions of this chapter, and interest and
penalties thereon that are due and payable prior to the date of such
receipt or certificate, but not from the lien of any tax lien duly sold
and not theretofore satisfied.
§ 11-317 Fees for searches to be added to bills. Fees for such search-
es shall be included in the bills mentioned in section 11-316 of this
chapter, and also charges for certificates, which shall be given by the
commissioner of finance or his or her designee respecting lots on which
there may be no arrears when searches are required. Such fees shall be
regulated by local law.
§ 11-318 Fee for certified search and bill of arrears. A fee of twen-
ty-five dollars shall be paid to and collected by the commissioner of
finance or his or her designee on his or her furnishing a certified
search and bill of arrears on each lot or piece of property mentioned or
referred to in the written request therefor. The commissioner of finance
shall be authorized to waive or reduce such fee in connection with any
sale of a tax lien or tax liens pursuant to this chapter.
§ 11-319 Sales of tax liens. a. A tax lien or tax liens on a property
or any component of the amount thereof may be sold by the city as
A. 10030 271
authorized by subdivision b of this section, when such tax lien or tax
liens shall have remained unpaid in whole or in part for one year,
provided, however, that a tax lien or tax liens on any class one proper-
ty or any class two property that is a residential condominium or resi-
dential cooperative, as such classes of property are defined in subdivi-
sion one of section eighteen hundred two of the real property tax law,
may be sold by the city only when the real property tax component of
such tax lien or tax liens shall have remained unpaid in whole or in
part for three years and, in the case of any such class one property
that is not vacant land or any such class two property that is a resi-
dential condominium or residential cooperative, as such classes of prop-
erty are defined in subdivision one of section eighteen hundred two of
the real property tax law, equals or exceeds the sum of five thousand
dollars, or, in the case of any class two residential property owned by
a company organized pursuant to article eleven of the private housing
finance law that is not a residential condominium or a residential coop-
erative, as such classes of property are defined in subdivision one of
section eighteen hundred two of the real property tax law, for two
years, and equals or exceeds the sum of five thousand dollars, or, in
the case of abandoned class one property or abandoned class two property
that is a residential condominium or residential cooperative, for eigh-
teen months, and after such sale, shall be transferred, in the manner
provided by this chapter, and provided, further, however, that (i) the
real property tax component of such tax lien may not be sold pursuant to
this subdivision on any: (A) residential real property in class one that
is receiving an exemption pursuant to section 11-245.3 or 11-245.4 of
this title, or pursuant to section four hundred fifty-eight of the real
property tax law with respect to real property purchased with payments
received as prisoner of war compensation from the United States govern-
ment, or pursuant to paragraph (b) or (c) of subdivision two of section
four hundred fifty-eight-a of the real property tax law, or where the
owner of such residential real property in class one is receiving bene-
fits in accordance with department of finance memorandum 05-3, or any
successor memorandum thereto, relating to active duty military person-
nel, or where the owner of such residential real property in class one
has been allowed a credit pursuant to subsection (e) of section six
hundred six of the tax law for the calendar year in which the date of
the first publication, pursuant to subdivision a of section 11-320 of
this chapter, of the notice of sale, occurs or for the calendar year
immediately preceding such date; or (B) real property that was granted
an exemption pursuant to section four hundred twenty-a, four hundred
twenty-b, four hundred forty-six, or four hundred sixty-two of the real
property tax law in one of the two fiscal years preceding the date of
such sale, provided that: (1) such exemption was granted to such real
property upon the application of a not-for-profit organization that owns
such real property on or after the date on which such real property was
conveyed to such not-for-profit organization; (2) the real property tax
component of such lien arose on or after the date on which such real
property was conveyed to such not-for-profit organization; and (3) such
not-for-profit organization is organized or conducted for one of the
purposes described in paragraph a or paragraph b of subdivision one of
section 11-246 of this title, and (ii) the sewer rents component, sewer
surcharges component or water rents component of such tax lien may not
be sold pursuant to this subdivision on any one family residential real
property in class one or on any two or three family residential real
property in class one that is receiving an exemption pursuant to section
A. 10030 272
11-245.3 or 11-245.4 of this title, or pursuant to section four hundred
fifty-eight of the real property tax law with respect to real property
purchased with payments received as prisoner of war compensation from
the United States government, or pursuant to paragraph (b) or (c) of
subdivision two of section four hundred fifty-eight-a of the real prop-
erty tax law, or where the owner of any two or three family residential
real property in class one is receiving benefits in accordance with
department of finance memorandum 05-3, or any successor memorandum ther-
eto, relating to active duty military personnel, or where the owner of
any two or three family residential real property in class one has been
allowed a credit pursuant to subsection (e) of section six hundred six
of the tax law for the calendar year in which the date of the first
publication, pursuant to subdivision a of section 11-320 of this chap-
ter, of the notice of sale, occurs or for the calendar year immediately
preceding such date. A tax lien or tax liens on any property classified
as a class two property, except a class two property that is a residen-
tial condominium or residential cooperative, or a class two residential
property owned by a company organized pursuant to article eleven of the
private housing finance law that is not a residential condominium or a
residential cooperative, or class three property, as such classes of
property are defined in subdivision one of section eighteen hundred two
of the real property tax law, shall not be sold by the city unless such
tax lien or tax liens include a real property tax component as of the
date of the first publication, pursuant to subdivision a of section
11-320 of this chapter, of the notice of sale. Notwithstanding any
provision of this subdivision to the contrary, any such tax lien or tax
liens that remain unpaid in whole or in part after such date may be sold
regardless of whether such tax lien or tax liens include a real property
tax component. A tax lien or tax liens on a property classified as a
class four property, as such class of property is defined in subdivision
one of section eighteen hundred two of the real property tax law, shall
not be sold by the city unless such tax lien or tax liens include a real
property tax component or sewer rents component or sewer surcharges
component or water rents component or emergency repair charges compo-
nent, where such emergency repair charges accrued on or after January
first, two thousand six and are made a lien pursuant to section 27-2144
of this code, as of the date of the first publication, pursuant to
subdivision a of section 11-320 of this chapter, of the notice of sale,
provided, however, that any tax lien or tax liens that remain unpaid in
whole or in part after such date may be sold regardless of whether such
tax lien or tax liens include a real property tax component, sewer rents
component, sewer surcharges component, water rents component or emergen-
cy repair charges component. For purposes of this subdivision, the words
"real property tax" shall not include an assessment or charge upon prop-
erty imposed pursuant to section 25-411 of this code. A sale of a tax
lien or tax liens shall include, in addition to such lien or liens that
have remained unpaid in whole or in part for one year, or, in the case
of any class one property or class two property that is a residential
condominium or residential cooperative, when the real property tax
component of such lien or liens has remained unpaid in whole or in part
for three years, or, in the case of any class two residential property
owned by a company organized pursuant to article eleven of the private
housing finance law that is not a residential condominium or a residen-
tial cooperative, when the real property tax component of such lien or
liens has remained unpaid in whole or in part for two years, and equals
or exceeds the sum of five thousand dollars, any taxes, assessments,
A. 10030 273
sewer rents, sewer surcharges, water rents, any other charges that are
made a lien subject to the provisions of this chapter, the costs of any
advertisements and notices given pursuant to this chapter, any other
charges that are due and payable, a surcharge pursuant to section 11-332
of this chapter, and interest and penalties thereon or such component of
the amount thereof as shall be determined by the commissioner of
finance. The commissioner of finance may promulgate rules defining
"abandoned" property, as such term is used in this subdivision.
a-1. A subsequent tax lien or tax liens on a property or any component
of the amount thereof may be sold by the city pursuant to this chapter,
provided, however, that notwithstanding any provision in this chapter to
the contrary, such tax lien or tax liens may be sold regardless of
whether such tax lien or tax liens have remained unpaid in whole or in
part for one year and, notwithstanding any provision in this chapter to
the contrary, in the case of any class one property or class two proper-
ty that is a residential condominium or residential cooperative or,
beginning January first, two thousand twelve, in the case of any class
two residential property owned by a company organized pursuant to arti-
cle eleven of the private housing finance law that is not a residential
condominium or a residential cooperative, such tax lien or tax liens may
be sold if the real property tax component of such tax lien or tax liens
has remained unpaid in whole or in part for one year, and provided,
further, however, that (i) the real property tax component of such tax
lien may not be sold pursuant to this subdivision on any residential
real property in class one that is receiving an exemption pursuant to
section 11-245.3 or 11-245.4 of this title, or pursuant to section four
hundred fifty-eight of the real property tax law with respect to real
property purchased with payments received as prisoner of war compen-
sation from the United States government, or pursuant to paragraph (b)
or (c) of subdivision two of section four hundred fifty-eight-a of the
real property tax law, or where the owner of such residential real prop-
erty in class one is receiving benefits in accordance with department of
finance memorandum 05-3, or any successor memorandum thereto, relating
to active duty military personnel, or where the owner of such residen-
tial real property in class one has been allowed a credit pursuant to
subsection (e) of section six hundred six of the tax law for the calen-
dar year in which the date of the first publication, pursuant to subdi-
vision a of section 11-320 of this chapter, of the notice of sale,
occurs or for the calendar year immediately preceding such date and (ii)
the sewer rents component, sewer surcharges component or water rents
component of such tax lien may not be sold pursuant to this subdivision
on any one family residential real property in class one or on any two
or three family residential real property in class one that is receiving
an exemption pursuant to section 11-245.3 or 11-245.4 of this title, or
pursuant to section four hundred fifty-eight of the real property tax
law with respect to real property purchased with payments received as
prisoner of war compensation from the United States government, or
pursuant to paragraph (b) or (c) of subdivision two of section four
hundred fifty-eight-a of the real property tax law, or where the owner
of any two or three family residential real property in class one is
receiving benefits in accordance with department of finance memorandum
05-3, or any successor memorandum thereto, relating to active duty mili-
tary personnel, or where the owner of any two or three family residen-
tial real property in class one has been allowed a credit pursuant to
subsection (e) of section six hundred six of the tax law for the calen-
dar year in which the date of the first publication, pursuant to subdi-
A. 10030 274
vision a of section 11-320 of this chapter, of the notice of sale,
occurs or for the calendar year immediately preceding such date. For
purposes of this subdivision, the term "subsequent tax lien or tax
liens" shall mean any tax lien or tax liens on property that become such
on or after the date of sale of any tax lien or tax liens on such prop-
erty that have been sold pursuant to this chapter, provided that the
prior tax lien or tax liens remain unpaid as of the date of the first
publication, pursuant to subdivision a of section 11-320 of this chap-
ter, of the notice of sale of the subsequent tax lien or tax liens. A
subsequent tax lien or tax liens on any property classified as a class
two property, except a class two property that is a residential condo-
minium or residential cooperative, or a class two residential property
owned by a company organized pursuant to article eleven of the private
housing finance law that is not a residential condominium or a residen-
tial cooperative, or class three property, as such classes of property
are defined in subdivision one of section eighteen hundred two of the
real property tax law, shall not be sold by the city unless such tax
lien or tax liens include a real property tax component as of the date
of the first publication, pursuant to subdivision a of section 11-320 of
this chapter, of the notice of sale. Notwithstanding any provision of
this subdivision to the contrary, any such tax lien or tax liens that
remain unpaid in whole or in part after such date may be sold regardless
of whether such tax lien or tax liens include a real property tax compo-
nent. A subsequent tax lien or tax liens on a property classified as a
class four property, as such class of property is defined in subdivision
one of section eighteen hundred two of the real property tax law, shall
not be sold by the city unless such tax lien or tax liens include a real
property tax component or sewer rents component or sewer surcharges
component or water rents component or emergency repair charges compo-
nent, where such emergency repair charges accrued on or after January
first, two thousand six and are made a lien pursuant to section 27-2144
of this code, as of the date of the first publication, pursuant to
subdivision a of section 11-320 of this chapter, of the notice of sale,
provided, however, that any tax lien or tax liens that remain unpaid in
whole or in part after such date may be sold regardless of whether such
tax lien or tax liens include a real property tax component, sewer rents
component, sewer surcharges component, water rents component or emergen-
cy repair charges component. For purposes of this subdivision, the words
"real property tax" shall not include an assessment or charge upon prop-
erty imposed pursuant to section 25-411 of this code. Nothing in this
subdivision shall be deemed to limit the rights conferred by section
11-332 of this chapter on the holder of a tax lien certificate with
respect to a subsequent tax lien.
a-2. In addition to any sale authorized pursuant to subdivision a or
subdivision a-1 of this section and notwithstanding any provision of
this chapter to the contrary, beginning on December first, two thousand
seven, the water rents, sewer rents and sewer surcharges components of
any tax lien on any class of real property, as such real property is
classified in subdivision one of section eighteen hundred two of the
real property tax law, may be sold by the city pursuant to this chapter,
where such water rents, sewer rents or sewer surcharges component of
such tax lien, as of the date of the first publication, pursuant to
subdivision a of section 11-320 of this chapter, of the notice of sale:
(i) shall have remained unpaid in whole or in part for one year and (ii)
equals or exceeds the sum of one thousand dollars or, beginning on March
first, two thousand eleven, in the case of any two or three family resi-
A. 10030 275
dential real property in class one, for one year, and equals or exceeds
the sum of two thousand dollars, or, beginning on January first, two
thousand twenty-one, in the case of any two or three family residential
real property in class one, for one year, and equals or exceeds the sum
of three thousand dollars, or, beginning on January first, two thousand
twelve, in the case of any class two residential property owned by a
company organized pursuant to article eleven of the private housing
finance law that is not a residential condominium or a residential coop-
erative, as such class of property is defined in subdivision one of
section eighteen hundred two of the real property tax law, for two
years, and equals or exceeds the sum of five thousand dollars; provided,
however, that such water rents, sewer rents or sewer surcharges compo-
nent of such tax lien may not be sold pursuant to this subdivision on
any one family residential real property in class one or on any two or
three family residential real property in class one that is receiving an
exemption pursuant to section 11-245.3 or 11-245.4 of this title, or
pursuant to section four hundred fifty-eight of the real property tax
law with respect to real property purchased with payments received as
prisoner of war compensation from the United States government, or
pursuant to paragraph (b) or (c) of subdivision two of section four
hundred fifty-eight-a of the real property tax law, or where the owner
of any two or three family residential real property in class one is
receiving benefits in accordance with department of finance memorandum
05-3, or any successor memorandum thereto, relating to active duty mili-
tary personnel, or where the owner of any two or three family residen-
tial real property in class one has been allowed a credit pursuant to
subsection (e) of section six hundred six of the tax law for the calen-
dar year in which the date of the first publication, pursuant to subdi-
vision a of section 11-320 of this chapter, of the notice of sale,
occurs or for the calendar year immediately preceding such date. After
such sale, any such water rents, sewer rents or sewer surcharges compo-
nent of such tax lien may be transferred in the manner provided by this
chapter.
a-3. In addition to any sale authorized pursuant to subdivision a or
subdivision a-1 of this section and notwithstanding any provision of
this chapter to the contrary, beginning on December first, two thousand
seven, a subsequent tax lien on any class of real property, as such real
property is classified in subdivision one of section eighteen hundred
two of the real property tax law, may be sold by the city pursuant to
this chapter, regardless of whether such subsequent tax lien, or any
component of the amount thereof, shall have remained unpaid in whole or
in part for one year, and regardless of whether such subsequent tax
lien, or any component of the amount thereof, equals or exceeds the sum
of one thousand dollars or beginning on March first, two thousand elev-
en, in the case of any two or three family residential real property in
class one, a subsequent tax lien on such property may be sold by the
city pursuant to this chapter, regardless of whether such subsequent tax
lien, or any component of the amount thereof, shall have remained unpaid
in whole or in part for one year, and regardless of whether such subse-
quent tax lien, or any component of the amount thereof, equals or
exceeds the sum of two thousand dollars, or, beginning on January first,
two thousand twenty-one, in the case of any two or three family residen-
tial real property in class one, a subsequent tax lien on such property
may be sold by the city pursuant to this chapter, regardless of whether
such subsequent tax lien, or any component of the amount thereof, shall
have remained unpaid in whole or in part for one year, and regardless of
A. 10030 276
whether such subsequent tax lien, or any component of the amount there-
of, equals or exceeds the sum of three thousand dollars, or, beginning
on January first, two thousand twelve, in the case of any class two
residential property owned by a company organized pursuant to article
eleven of the private housing finance law that is not a residential
condominium or a residential cooperative, as such class of property is
defined in subdivision one of section eighteen hundred two of the real
property tax law, a subsequent tax lien on such property may be sold by
the city pursuant to this chapter, regardless of whether such subsequent
tax lien, or any component of the amount thereof, shall have remained
unpaid in whole or in part for two years, and regardless of whether such
subsequent tax lien, or any component of the amount thereof, equals or
exceeds the sum of five thousand dollars; provided, however, that such
subsequent tax lien may not be sold pursuant to this subdivision on any
one family residential real property in class one or on any two or three
family residential real property in class one that is receiving an
exemption pursuant to section 11-245.3 or 11-245.4 of this title, or
pursuant to section four hundred fifty-eight of the real property tax
law with respect to real property purchased with payments received as
prisoner of war compensation from the United States government, or
pursuant to paragraph (b) or (c) of subdivision two of section four
hundred fifty-eight-a of the real property tax law, or where the owner
of any two or three family residential real property in class one is
receiving benefits in accordance with department of finance memorandum
05-3, or any successor memorandum thereto, relating to active duty mili-
tary personnel, or where the owner of any two or three family residen-
tial real property in class one has been allowed a credit pursuant to
subsection (e) of section six hundred six of the tax law for the calen-
dar year in which the date of the first publication, pursuant to subdi-
vision a of section 11-320 of this chapter, of the notice of sale,
occurs or for the calendar year immediately preceding such date. After
such sale, any such subsequent tax lien, or any component of the amount
thereof, may be transferred in the manner provided by this chapter. For
purposes of this subdivision, the term "subsequent tax lien" shall mean
the water rents, sewer rents or sewer surcharges component of any tax
lien on property that becomes such on or after the date of sale of any
water rents, sewer rents or sewer surcharges component of any tax lien
on such property that has been sold pursuant to this chapter, provided
that the prior tax lien remains unpaid as of the date of the first
publication, pursuant to subdivision a of section 11-320 of this chap-
ter, of the notice of sale of the subsequent tax lien. Nothing in this
subdivision shall be deemed to limit the rights conferred by section
11-332 of this chapter on the holder of a tax lien certificate with
respect to a subsequent tax lien.
a-4. In addition to any sale authorized pursuant to subdivision a,
a-1, a-2 or a-3 of this section and notwithstanding any provision of
this chapter to the contrary, beginning on March first, two thousand
eleven, the emergency repair charges component or alternative enforce-
ment expenses and fees component, where such emergency repair charges
accrued on or after January first, two thousand six and are made a lien
pursuant to section 27-2144 of this code, or where such alternative
enforcement expenses and fees are made a lien pursuant to section
27-2153 of this code, of any tax lien on any class of real property, as
such real property is defined in subdivision one of section eighteen
hundred two of the real property tax law, may be sold by the city pursu-
ant to this chapter, where such emergency repair charges component or
A. 10030 277
alternative enforcement expenses and fees component of such tax lien, as
of the date of the first publication, pursuant to subdivision a of
section 11-320 of this chapter, of the notice of sale: (i) shall have
remained unpaid in whole or in part for one year and (ii) equals or
exceeds the sum of one thousand dollars or, beginning on January first,
two thousand twelve, in the case of any class two residential property
owned by a company organized pursuant to article eleven of the private
housing finance law that is not a residential condominium or a residen-
tial cooperative, as such class of property is defined in subdivision
one of section eighteen hundred two of the real property tax law, for
two years, and equals or exceeds the sum of five thousand dollars;
provided, however, that such emergency repair charges component or
alternative enforcement expenses and fees component of such tax lien may
only be sold pursuant to this subdivision on any one, two or three fami-
ly residential real property in class one, where such one, two or three
family residential property in class one is not the primary residence of
the owner. After such sale, any such emergency repair charges component
or alternative enforcement expenses and fees component of such tax lien
may be transferred in the manner provided by this chapter.
a-5. In addition to any sale authorized pursuant to subdivision a,
a-1, a-2 or a-3 of this section and notwithstanding any provision of
this chapter to the contrary, beginning on March first, two thousand
eleven, a subsequent tax lien on any class of real property, or begin-
ning on January first, two thousand twelve in the case of any class two
residential property owned by a company organized pursuant to article
eleven of the private housing finance law that is not a residential
condominium or a residential cooperative, a subsequent tax lien on such
property, may be sold by the city pursuant to this chapter, regardless
of the length of time such subsequent tax lien, or any component of the
amount thereof, shall have remained unpaid, and regardless of the amount
of such subsequent tax lien. After such sale, any such subsequent tax
lien, or any component of the amount thereof, may be transferred in the
manner provided by this chapter. For purposes of this subdivision, the
term "subsequent tax lien" shall mean the emergency repair charges
component or alternative enforcement expenses and fees component, where
such emergency repair charges accrued on or after January first, two
thousand six and are made a lien pursuant to section 27-2144 of this
code, or where such alternative enforcement expenses and fees are made a
lien pursuant to section 27-2153 of this code, of any tax lien on prop-
erty that becomes such on or after the date of sale of any emergency
repair charges component or alternative enforcement expenses and fees
component, of any tax lien on such property that has been sold pursuant
to this chapter, provided that the prior tax lien remains unpaid as of
the date of the first publication, pursuant to subdivision a of section
11-320 of this chapter, of the notice of sale of the subsequent tax
lien. Nothing in this subdivision shall be deemed to limit the rights
conferred by section 11-332 of this chapter on the holder of a tax lien
certificate with respect to a subsequent tax lien.
a-6. Notwithstanding any provision of this chapter to the contrary,
beginning on September first, two thousand seventeen, a lien that
includes civil penalties for a violation of section 28-201.1 of this
code where such civil penalties accrued on or after July first, two
thousand seventeen, and became a lien pursuant to section 28-204.6.6 of
this code, may be sold by the city pursuant to this chapter, where such
civil penalties component of such lien, as of the date of the first
publication, pursuant to subdivision a of section 11-320 of this chap-
A. 10030 278
ter, of the notice of sale (i) shall have remained unpaid in whole or in
part for one year or more and (ii) equals or exceeds the sum of one
thousand dollars. After such sale, any such civil penalties component of
such lien may be transferred in the manner provided by this chapter.
b. The commissioner of finance, on behalf of the city, may sell tax
liens, either individually, in combinations, or in the aggregate, pursu-
ant to the procedures provided herein. The commissioner of finance shall
establish the terms and conditions of a sale of a tax lien or tax liens.
1. (i) The commissioner of finance may, in his or her discretion, sell
a tax lien or tax liens through a competitive sale. In addition to the
advertisement and notice required to be provided pursuant to section
11-320 of this chapter, the commissioner of finance or his or her desig-
nee shall cause to be published a notice of intention to sell a tax lien
or tax liens through a competitive sale, which notice shall include the
terms and conditions for such sale, the criteria by which bids shall be
evaluated, and a request for any other information or documents that the
commissioner of finance may require. Such notice shall be published in
one newspaper of general circulation in the city, not less than fifteen
days prior to the date designated by the commissioner for the submission
of bids.
(ii) The commissioner of finance may, in his or her discretion, estab-
lish criteria for the eligibility of bidders pursuant to section
11-321.1 of this chapter.
(iii) The commissioner of finance may reject any or all bids, or may
accept any combination of bids in a competitive sale.
2. (i) The commissioner of finance may, in his or her discretion, sell
a tax lien or tax liens through a negotiated sale. In addition to the
advertisement and notice required to be provided pursuant to section
11-320 of this chapter, the commissioner of finance or his or her desig-
nee shall cause to be published a notice of intention to sell a tax lien
or tax liens through a negotiated sale, which notice shall advise that a
request for statements of interest is available at the office of the
department of finance, and which may require the submission of any
information or documents that the commissioner deems appropriate,
provided, however, that if the negotiated sale is to a trust or other
entity created by the city or in which the city has an ownership or
residual interest, then the requirement that the notice advise that a
request for statements of interest is available at the office of the
department of finance shall not apply. Such notice shall be published in
one newspaper of general circulation in the city, not less than fifteen
days prior to the date designated by the commissioner for the receipt of
statements of interest, or if the negotiated sale is to such trust or
other entity, then such notice shall be published not less than fifteen
days prior to the date of sale. For purposes of this subparagraph, the
words "date of sale" shall have the same meaning provided in subdivision
e of section 11-320 of this chapter.
(ii) The commissioner of finance may engage in a negotiated sale in
accordance with criteria to be established pursuant to section 11-321.1
of this chapter.
(iii) The commissioner of finance may execute a purchase and sale
agreement and other necessary agreements with a designated purchaser or
purchasers to complete a negotiated sale.
3. The commissioner of finance may establish a minimum price for the
sale of tax liens that may be at a discount from or premium to the lien
amount. Notwithstanding the preceding sentence, the commissioner of
finance may not establish a minimum price for the sale of an individual
A. 10030 279
tax lien that is at a discount from the lien amount. The commissioner of
finance shall sell such tax liens at a purchase price that, in the
determination of such commissioner, is in the best interests of the
city. The commissioner of finance, in his or her discretion, may accept
cash or cash equivalent in immediately available funds, or other consid-
eration acceptable to the commissioner, or any combination thereof in
payment for a tax lien or tax liens.
4. The amount of a tax lien that is sold pursuant to this chapter
shall be the unpaid amount of the lien as of the date of sale, including
any interest and penalties thereon, any taxes, assessments, sewer rents,
sewer surcharges, water rents, any other charges that are made a lien
subject to the provisions of this chapter, the costs of any advertise-
ments and notices given pursuant to this chapter, any other charges that
are due and payable, any surcharge pursuant to section 11-332 of this
chapter, and interest and penalties thereon, or such component of the
amount thereof as shall be determined by the commissioner of finance,
notwithstanding the amount paid for purchase of the tax lien or compo-
nent of the amount thereof. For purposes of this paragraph, the words
"date of sale" shall have the same meaning provided in subdivision y of
section 11-320 of this chapter.
5. (i) The commissioner of finance may, subsequent to the offer for
sale of any tax lien or tax liens and the failure to complete such sale,
offer such tax lien or tax liens for sale again to any other person or
persons who satisfied the terms and conditions of the sale without
providing any additional advertisements or notices pursuant to this
chapter.
(ii) Notwithstanding subparagraph (i) of this paragraph, any tax lien
that was noticed for sale pursuant to this chapter, but was not sold on
the original date of sale, may be sold without any additional advertise-
ments or notices pursuant to this chapter if the subsequent date of sale
is within six months of the second publication, pursuant to subdivision
a of section 11-320 of this chapter, of the notice of the original date
of sale. If the subsequent date of sale is more than six months after
the second publication, pursuant to subdivision a of section 11-320 of
this chapter, of the notice of the original date of sale, then the
commissioner of finance, or his or her designee, shall provide notice of
the subsequent date of sale pursuant to subdivision b of section 11-320
of this chapter. No other additional advertisements or notices shall be
necessary prior to the date of sale.
6. The rate of interest on any tax lien certificate shall be the rate
adopted for nonpayment of taxes on real property, pursuant to subdivi-
sion (e) of section 11-224.1 of this title, that is in effect on January
first of the year in which the tax lien is sold.
7. It is the intent of the city that a sale of a tax lien or tax liens
pursuant to this chapter shall be a sale and not a borrowing.
8. Whenever any tax lien purchased at a tax lien sale is found to be
invalid, void or defective in whole or in part, or not to conform to any
representation or warranty with respect thereto, made by the commission-
er of finance in connection with the sale thereof, by judgment or decree
of a court of competent jurisdiction or by determination of the commis-
sioner of finance, the commissioner of finance may, in his or her
discretion, substitute for such tax lien or portion thereof another tax
lien that has a value equivalent to the value of the tax lien or portion
thereof found to be invalid, void, defective, or not to so conform, or
may refund such value of the tax lien or portion thereof found to be
invalid, void, defective, or not to so conform, or may use a combination
A. 10030 280
of substitution and refund. No other remedy shall be available to a
purchaser of a tax lien which is found to be invalid, void, defective,
or not to conform to a representation or warranty with respect thereto
made by the commissioner of finance in connection with the sale thereof,
in whole or in part. Whenever a tax lien of such equivalent value is to
be substituted for a tax lien that has been found invalid, void, defec-
tive, or not to so conform, in whole or in part, pursuant to this
section, the commissioner of finance or his or her designee shall
provide mailed notice of the intention to substitute such lien of such
equivalent value to any person required to be notified pursuant to
section 11-320(b) of this chapter.
9. The commissioner of finance may establish requirements for a
purchaser of a tax lien to provide any information and documents that
the commissioner of finance deems necessary, including information
concerning the collection and enforcement of tax liens. The commission-
er of finance shall require the purchaser of a tax lien to provide the
owner of property on which a tax lien has been sold pursuant to this
chapter a detailed itemization of taxes, interest, surcharges, and fees
charged to such owner on all tax lien statements of amounts due or bill
of charges. Such fees shall be bona fide, reasonable and, in the case of
attorneys' fees, customary.
10. (i) On and after January first, two thousand twelve, no tax lien
shall be sold pursuant to this chapter on any class two residential
property owned by a company organized pursuant to article eleven of the
private housing finance law that is a residential condominium or resi-
dential cooperative. If, notwithstanding the foregoing sentence, any
such tax lien is sold in error pursuant to this chapter on and after
January first, two thousand twelve on such property, then the provisions
of paragraph eight of this subdivision shall apply to such sale, includ-
ing the authority of the commissioner of finance to substitute for such
tax lien another tax lien that has a value equivalent to the value of
such tax lien or to refund the value of such tax lien. For the purposes
of this paragraph, property owned by such company shall be limited to
property owned for the purpose, as set forth in section five hundred
seventy-one of the private housing finance law, of providing housing for
families and persons of low income.
(ii) No later than May first, two thousand eleven, the commissioner of
finance, in consultation with the commissioner of housing preservation
and development, shall notify by mail any class two residential property
owned by a company organized pursuant to article eleven of the private
housing finance law that is not a residential condominium or residential
cooperative, of the authority of the commissioner of finance to sell the
tax liens on such property. Such notification shall include information
relating to the lien sale process, including, but not limited to,
actions homeowners can take if a lien is sold on such property; the type
of debt that can be sold in a lien sale; a timeline of statutory notifi-
cations required pursuant to section 11-320 of this chapter; a clear,
concise explanation of the consequences of the sale of a tax lien; the
telephone number and electronic mail address of the employee or employ-
ees designated pursuant to subdivision f of section 11-320 of this chap-
ter; a conspicuous statement that the owner of the property may enter
into a payment plan for exclusion from the tax lien sale; and credits
and property tax exemptions that may exclude a property from a tax lien
sale and any other credit or residential real property tax exemption
information, which, in the discretion of the commissioner of finance,
should be included in such notification.
A. 10030 281
Upon such property owner's written request, or verbal request to 311
or any employee designated pursuant to subdivision f of section 11-320
of this chapter, a Chinese, Korean, Russian or Spanish translation of
such notice shall be provided promptly to such property owner.
11. No later than the first of September in the year next succeeding
the effective date of this section, the appropriate agency shall promul-
gate rules identifying or describing any existing procedures governing
challenges to the validity of any real property tax, sewer rent, sewer
surcharge, water rent, emergency repair charge or alternative enforce-
ment expense or fee.
12. On or after January first, two thousand fifteen and before January
first, two thousand seventeen, no tax lien shall be sold pursuant to
this chapter on the following properties: (i) properties enrolled in the
city's Build It Back Program; and (ii) properties defined as "eligible
real property" pursuant to subdivision three of section four hundred
sixty-seven-g of the real property tax law. If, notwithstanding the
foregoing sentence, any such tax lien is sold in error pursuant to this
chapter during such time period on properties described in subparagraph
(i) or (ii) of this paragraph, then the provisions of paragraph eight of
this subdivision shall apply to such sale, including the authority of
the commissioner of finance to substitute for such tax lien another tax
lien that has a value equivalent to the value of such tax lien or to
refund the value of such lien.
13. Notwithstanding any provision of this chapter to the contrary, no
tax lien shall be sold pursuant to this chapter on any of the following
properties: (i) any real property for which the owner in good faith has
submitted an application that is pending with the department of finance
for a real property tax exemption pursuant to section four hundred twen-
ty-a, four hundred twenty-b, four hundred forty-six, or four hundred
sixty-two of the real property tax law; and (ii) any real property for
which the owner has in good faith filed an appeal with the tax commis-
sion of a denial of any such application and such appeal is pending.
There shall be a rebuttable presumption that an application or an appeal
referenced in the preceding sentence was not submitted in good faith
where, within the twenty-four months preceding the submission of such
application or such appeal, the period for the filing of an appeal of a
denial by the department of finance of a previous application for a real
property tax exemption pursuant to section four hundred twenty-a, four
hundred twenty-b, four hundred forty-six, or four hundred sixty-two of
the real property tax law has expired.
§ 11-320 Notice of sale to be advertised and mailed. a. 1. The tax
lien on property in the city shall not be sold pursuant to section
11-319 of this chapter unless notice of such sale as provided herein has
been published twice, the first publication to be in a newspaper of
general circulation in the city, not less than ninety days preceding the
date of the sale, and the second publication to be in a publication
designated by the commissioner of finance, not less than ten days
preceding the date of the sale. Such publication shall include a
description by block and lot or by such other identification as the
commissioner of finance may deem appropriate, of the property upon which
the tax lien exists that may be included in the sale, and a statement
that a list of the tax liens that may be included in the sale is avail-
able for inspection in the office of the city register and the office of
the county clerk. The commissioner of finance shall file such list in
the office of the city register and the office of the county clerk not
less than ninety days prior to the date of sale.
A. 10030 282
2. Not less than ninety days preceding the date of the sale, the
commissioner of finance shall post online, to the extent such informa-
tion is available, the borough, block and lot of any property on which a
lien has been or will be noticed for sale in accordance with paragraph
one of this subdivision and that, in one or more of the five fiscal
years preceding the date of the sale, was in receipt of a real property
tax exemption pursuant to section four hundred twenty-a, four hundred
twenty-b, four hundred forty-six or four hundred sixty-two of the real
property tax law and, in addition, shall post online, to the extent such
information is available, the borough, block and lot of any vacant land
classified as class one or class four pursuant to section eighteen
hundred two of the real property tax law on which a lien has been or
will be noticed for sale in accordance with paragraph one of this subdi-
vision. Any failure to comply with this paragraph shall not affect the
validity of any sale of tax liens pursuant to this chapter.
b. 1. A tax lien shall not be sold unless the commissioner of finance,
or his or her designee, notifies the owner of record at the address of
record and any other person who has registered pursuant to section
11-309 of this chapter, or pursuant to section 11-416 or 11-417 of this
title, by first class mail, of the intention to sell the tax lien. If no
such registrations have been filed then such commissioner, or his or her
designee, shall notify the person whose name and address, if any,
appears in the latest annual record of assessed valuations, by first
class mail, of the intention to sell the tax lien. Such mailed notice
shall include a description of the property by block and lot and such
other identifying information as the commissioner of finance may deem
appropriate, the amount of the tax lien, including all taxes, assess-
ments, sewer rents, sewer surcharges, water rents, any other charges
that are made a lien subject to the provisions of this chapter, as well
as an estimate of the costs of any advertisements and notices given
pursuant to this chapter, any other charges that are due and payable on
the date specified in such publication, a surcharge pursuant to section
11-332 of this chapter if the tax lien is sold, and interest and penal-
ties thereon, and shall be mailed to such owner and such other persons
four times: not less than ninety, sixty, thirty and ten days prior to
the date of sale. Such notice shall state that if default continues to
be made in payment of the amounts due on such property, the tax lien on
such property shall be sold as provided in section 11-319 of this chap-
ter. If, notwithstanding such notice, the owner shall continue to refuse
or neglect to pay the amounts due on such property, the commissioner of
finance may sell the tax lien on such property as provided in section
11-319 of this chapter.
2. (i) Such notices shall also include, with respect to any property
owner in class one or class two, as such classes of property are defined
in subdivision one of section eighteen hundred two of the real property
tax law, an exemption eligibility checklist. The exemption eligibility
checklist shall also be posted on the website of the department of
finance no later than the first business day after March fifteenth of
every year prior to the date of sale, and shall continue to be posted on
such website until ten days prior to the date of sale. Within ten busi-
ness days of receipt of a completed exemption eligibility checklist from
such property owner, provided that such receipt occurs prior to the date
of sale of any tax lien or tax liens on his or her property, the depart-
ment of finance shall review such checklist to determine, based on the
information provided by the property owner, whether such property owner
could be eligible for any exemption, credit or other benefit that would
A. 10030 283
entitle them to be excluded from a tax lien sale and, if the department
determines that such property owner could be eligible for any such
exemption, credit or other benefit, shall mail such property owner an
application for the appropriate exemption, credit or other benefit. If,
within twenty business days of the date the department mailed such
application, the department of finance has not received a completed
application from such property owner, such department shall mail such
property owner a second application, and shall telephone the property
owner, if the property owner has included his or her telephone number on
the exemption eligibility checklist.
(ii) Any such property owner who returns to the department of finance
a completed exemption eligibility checklist prior to the date of sale of
any tax lien or tax liens on his or her property and who subsequently
submits a completed application for the appropriate exemption, credit or
other benefit either prior to, on or up to ninety days after such sale,
shall have his or her application reviewed by the department of finance.
If, prior to the date of sale, the department of finance determines that
such property owner is qualified for such exemption, credit or other
benefit or will be qualified as of the date of sale, then the tax lien
or tax liens on his or her property shall not be sold on such date. If,
on or after the date of sale, the department of finance determines that
such property owner is or was qualified for such exemption, credit or
other benefit as of the date of sale, then any tax lien or tax liens on
his or her property that were sold shall be deemed defective.
(iii) Not later than thirty days prior to such date of sale, the
department of finance shall submit to the council a list, disaggregated
by council district, of all properties for which property owners
returned a completed eligibility checklist to the department of finance
at least thirty-five days prior to the date of sale, but for which prop-
erty owners have not yet submitted a completed application for the
appropriate exemption, credit or other benefit.
(iv) Not later than thirty days after such date of sale, the depart-
ment of finance shall submit to the council a list, disaggregated by
council district, of all properties for which property owners returned a
completed eligibility checklist to the department of finance prior to
the date of sale, but for which property owners have not yet submitted a
completed application for the appropriate exemption, credit or other
benefit.
(v) Upon the written or verbal request of such property owner, the
department of finance shall provide prompt assistance to such property
owner in completing an application for the appropriate exemption, credit
or other benefit.
2-a. If, prior to the date of sale, the department of finance confirms
that a property is the subject of (i) a judicial proceeding or (ii) an
investigation or a prosecution by any agency or office of the United
States or any state or subdivision thereof with regard to the ownership
of such property arising from the fraudulent transmittal of a deed
relating to such property, such department shall remove such property
from the sale, provided that the owner of such property has provided an
affidavit to such department and any such other documentation required
by such department to establish that such property is the subject of
such a proceeding, investigation or prosecution. Any such removal shall
relate only to the sale of a tax lien or tax liens for which the owner
has received notice pursuant to paragraph one of subdivision b of this
section. Failure by the department of finance to remove such property
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shall not affect the validity of any sale of tax liens pursuant to this
chapter.
3. The notice provided not less than ninety days prior to the date of
sale shall also include information relating to the lien sale process,
including, but not limited to, actions homeowners can take if a lien is
sold on such property; the type of debt that can be sold in a lien sale;
a timeline of statutory notifications required pursuant to this section;
a clear, concise explanation of the consequences of the sale of a tax
lien; the telephone number and electronic mail address of the employee
or employees designated pursuant to subdivision f of this section; a
conspicuous statement that the owner of the property may enter into a
payment plan for exclusion from the tax lien sale; and credits and prop-
erty tax exemptions that may exclude certain class one real property
from a tax lien sale. Such notice shall also include information on the
following real property tax exemptions, credits or other benefits:
(i) the senior citizen homeowner exemption pursuant to section
11-245.3 of this title;
(ii) the exemption for persons with disabilities pursuant to section
11-245.4 of this title;
(iii) the exemption for veterans pursuant to section four hundred
fifty-eight of the real property tax law, with respect to real property
purchased with payments received as prisoner of war compensation from
the United States government;
(iv) the exemption for veterans pursuant to paragraph (b) or (c) of
subdivision two of section four hundred fifty-eight-a of the real prop-
erty tax law;
(v) the state circuit breaker income tax credit pursuant to subsection
(e) of section six hundred six of the tax law; and
(vi) the active duty military personnel benefit pursuant to department
of finance memorandum 05-3, or any successor memorandum thereto.
Upon such property owner's written request, or verbal request to 311
or any employee designated pursuant to subdivision f of this section, a
Chinese, Korean, Russian or Spanish translation of such notice shall be
provided promptly to such property owner.
4. Such notice shall also include, with respect to a property that was
in receipt of a real property tax exemption pursuant to section four
hundred twenty-a, four hundred twenty-b, four hundred forty-six, or four
hundred sixty-two of the real property tax law in one or more of the
three fiscal years preceding the date of the notice provided not less
than ninety days prior to the date of sale, or with respect to a proper-
ty in class four, as such class of property is defined in subdivision
one of section eighteen hundred two of the real property tax law, infor-
mation relating to the initial application and renewal process for such
property tax exemptions, and other actions available to the owner of
such property in the event such property is noticed for sale pursuant to
this subdivision, including, if available, an adjustment or cancellation
of back taxes. Upon request of the owner of such property, a translation
of such notice in any of the top ten languages most commonly spoken
within the city as determined by the department of city planning shall
be provided to such owner.
5. The department of finance and the department of environmental
protection shall, to the extent practicable, contact by telephone or
electronic mail any person who (i) has registered their telephone number
or electronic mail address with such departments and (ii) has received
the ninety-day notice described in paragraph one of this subdivision.
Any such contact shall be made within a time period reasonably proximate
A. 10030 285
to the mailing of such notice, shall inform such person of the intention
to sell a tax lien and shall provide such other information as the
respective commissioner deems appropriate, which may include, but need
not be limited to, the telephone numbers and electronic mail addresses
of the employees designated pursuant to subdivision f of this section.
The department of finance shall contact by electronic mail any person
who has registered pursuant to subdivision a of section 11-245.8 of this
title to receive information about the outreach sessions described in
subdivision j of this section and provide such information within a time
period reasonably proximate to the scheduled outreach session. Failure
by the department of finance or the department of environmental
protection to contact any such person by telephone or electronic mail
shall not affect the validity of any sale of tax liens pursuant to this
chapter.
c. Such notices shall advise the owner of such property of his or her
continued obligation to pay the amounts due on such property. No other
notices or demands shall be required to be made to the owner of such
property to authorize the sale of a tax lien or tax liens on such prop-
erty pursuant to section 11-319 of this chapter.
c-1. Where a tax lien on property in the city has been noticed for
sale pursuant to subdivision b of this section and such lien, prior to
the date of sale, has been paid or is otherwise determined by the
commissioner of finance not to be eligible to be sold, such commissioner
shall promptly provide written notification to the owner of such proper-
ty that such lien will not be or was not included in such sale and the
reason therefor.
d. 1. The commissioner of finance or his or her designee shall, within
ninety days after the delivery of the tax lien certificate, notify any
person who was required to be notified of such sale pursuant to subdivi-
sion (b) of section 11-320 of this chapter, by first class mail, that
such sale has occurred. Such notice shall state the date of the sale of
the tax lien, the name and address of the purchaser of the tax lien, the
amount of such lien, a description of the property by block and lot and
such other identifying information as the commissioner of finance or his
or her designee shall deem appropriate, and the terms and conditions of
the tax lien certificate, including the right to satisfy the lien within
the time periods specified in this chapter. Such notice shall also
include the telephone number and electronic mail address of the employee
or employees designated pursuant to subdivision f of this section.
2. Any written communication from the purchaser of the tax lien or
liens to an owner of property, on which a tax lien has been sold pursu-
ant to the provisions of this chapter, shall include the following
information:
(i) an explanation of the roles of the purchaser of the tax lien and
the employee or employees designated pursuant to subdivision f of this
section;
(ii) the names and contact information, including the telephone
number, electronic mail and mailing addresses of such persons; and
(iii) a statement informing such owner that he or she may be eligible
to enter into a forbearance agreement with the purchaser of such tax
lien.
3. The requirement to send such written communication shall be subject
to federal, state and local debt collection laws.
4. Failure to provide notice pursuant to this subdivision shall not
affect the validity of any sale of a tax lien or tax liens pursuant to
this chapter.
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e. The words "date of sale" when used in this section shall mean:
(1) for a negotiated sale, the date of signing of the tax lien
purchase agreement, and (2) for a competitive sale, the date designated
by the commissioner of finance for the submission of bids.
f. The commissioner of finance shall designate an employee of the
department to respond to inquiries from owners of property for which a
tax lien has been sold or noticed for sale pursuant to subdivision a of
this section and shall designate an employee of the department to
respond to inquiries from owners sixty-five years of age or older of
property for which a tax lien has been sold or noticed for sale pursuant
to subdivision a of this section. The commissioner of environmental
protection shall designate at least one employee of the department of
environmental protection to respond to inquiries from owners of property
for which a tax lien containing a water rents, sewer rents or sewer
surcharges component has been sold or noticed for sale pursuant to
subdivision a of this section. The telephone numbers and electronic mail
addresses of employees designated pursuant to this subdivision shall be
posted online and shall be included on all publications and notices
required by subdivisions a and b of this section. Failure to include
such numbers and addresses on all such publications and notices shall
not affect the validity of any sale of tax liens pursuant to this chap-
ter.
g. No later than one hundred twenty days after the tax lien sale, the
commissioner of finance shall submit to the council a list of all prop-
erties, identified by block and lot, noticed for sale pursuant to subdi-
vision b of this section. Such list shall also include a description of
the disposition of such properties that shall include, but not be limit-
ed to, whether an owner entered into a payment plan with the city pursu-
ant to section 11-322 or 11-322.1 of this chapter, whether an owner
satisfied the tax lien or liens, whether ownership of the property was
transferred, provided that such information is available to the city, or
whether the property was distressed, as defined in subdivision four of
section 11-401 of this title, or removed from the sale pursuant to the
discretion of the commissioner of housing preservation and development.
h. 1. On a quarterly basis, a purchaser of tax liens shall provide to
the council a list of all properties on which tax liens have been sold
where, subsequent to such sale, there has been a transfer of ownership
of the property, provided that a purchaser of tax liens has knowledge of
such transfers, for the following groups:
(i) all properties on which liens for emergency repair charges or
alternative enforcement expenses and fees have been sold to such
purchaser pursuant to subdivision a-4 of section 11-319 of this chapter;
and
(ii) all class two residential property owned by a company organized
pursuant to article eleven of the private housing finance law that is
not a residential condominium or a residential cooperative on which any
tax lien has been sold pursuant to subdivision a, a-2 or a-4 of section
11-319 of this chapter.
2. When available, a purchaser of tax liens shall include the names
and contact information of the new owners of record of such properties.
i. On a quarterly basis, a purchaser of tax liens shall provide to the
council a property status report. For each property, such report shall
include: (1) information about such property, including property tax
class; property type; description of the tax lien or tax liens that have
been sold to such purchaser on such property pursuant to this chapter,
including the amount of the tax lien or tax liens, the costs of any
A. 10030 287
advertisements and notices given pursuant to this chapter; the amount of
the surcharge pursuant to section 11-332 of this chapter; and the amount
of interest and penalties thereon; and (2) the status of the tax lien or
tax liens, including foreclosure information, if applicable; whether the
property owner entered into an installment agreement; whether the prop-
erty owner is current on such installment agreement; and whether the tax
lien or tax liens on such property have been deemed defective, and, if
so, the reason any such lien or liens were deemed defective. Each prop-
erty listed in the report shall be identified by block and lot.
j. (1) At the request of a council member, the commissioner of
finance, in consultation with the commissioner of housing preservation
and development and the commissioner of environmental protection, may
conduct outreach sessions in the district of such council member,
provided, however, that, the commissioner of finance shall conduct such
outreach sessions in the ten council districts with the greatest number
of properties for which a notice of intention to sell a tax lien has
been mailed ninety days prior to the date of sale pursuant to paragraph
one of subdivision b of this section, and provided, further, however,
that, such commissioner shall conduct additional outreach sessions in
the five council districts with the greatest number of properties for
which a notice of intention to sell a tax lien has been mailed ninety
days prior to the date of sale pursuant to such paragraph. To the extent
practicable, the commissioner of finance shall schedule the outreach
sessions in the five council districts described in the preceding
sentence such that one occurs prior to the mailing of the notice of
intention to sell a tax lien that is required to be mailed thirty days
prior to the date of sale pursuant to paragraph one of subdivision b of
this section and one occurs subsequent to such mailing. The scope of
such outreach sessions shall include, but need not be limited to, (i)
actions property owners can take if a lien is sold on such property;
(ii) the type of tax lien or tax liens that can be sold in a tax lien
sale; (iii) installment agreement information, including informing
attendees in such outreach sessions of their option to enter into an
installment agreement for exclusion from the tax lien sale with no down
payment, with options for income-based installment agreements or
installment agreements with a term of up to ten years; (iv) credits and
property tax exemptions that may exclude a property from a tax lien
sale; (v) distribution of a customer survey to property owners who have
received notice of the intention to sell a tax lien on their property,
in order to determine the circumstances that led to the creation of the
lien; and (vi) any other credit or residential real property tax
exemption information, which, in the discretion of the commissioner of
finance, should be included in such outreach sessions. (2) The commis-
sioner of finance shall make a good faith effort to have a financial
counselor available at such outreach sessions. No later than ninety days
after the tax lien sale, the commissioner of finance shall submit to the
council a report on the number of outreach sessions performed in each
council district during the ninety-day period preceding the tax lien
sale. Such report shall include: (i) the number of installment agree-
ments begun by property owners or, as defined in subdivision b of
section 11-322 of this chapter, other eligible persons acting on behalf
of property owners at each outreach session; (ii) the number of property
tax exemption applications begun at each outreach session; (iii) the
total number of attendees at each outreach session; (iv) the number of
outreach sessions at which a financial counselor was available; (v) the
number of property owners, or other eligible persons acting on behalf of
A. 10030 288
property owners, who consulted a financial counselor at each outreach
session at which a financial counselor was available; and (vi) the
results of such surveys. Such report and the results of each outreach
session shall be disaggregated by council district.
k. The commissioner of finance shall post online the information
reported to the council pursuant to subdivisions h and i of this
section, provided that no information shall be posted online that
specifically identifies any property or property owner, except by zip
code and a randomly generated identifier.
§ 11-321 Continuation of sale; notice required. A sale of a tax lien
or tax liens may be continued from time to time, if necessary, until all
the tax liens on the property so advertised and noticed shall be sold
unless such sale is canceled or postponed in accordance with section
11-322 or 11-322.1 of this chapter. If a sale of a tax lien or tax liens
is continued, the commissioner of finance, or his or her designee, shall
give such notice as is practicable of such continuation.
§ 11-322 Postponement or cancellation of sales; installment agree-
ments. a. It shall be lawful for the commissioner of finance, or his or
her designee, to postpone or cancel any proposed sale of a tax lien or
tax liens on property that shall have been advertised and noticed for
sale prior to the date of sale. For purposes of this section, the words
"date of sale" shall have the same meaning provided in subdivision e of
section 11-320 of this chapter. The city shall not be liable for any
damages as a result of cancellation or postponement of a proposed sale
of a tax lien or tax liens, nor shall any cause of action arise from
such cancellation or postponement.
b. In accordance with rules promulgated by the commissioners of
finance and environmental protection, a property owner, or other eligi-
ble person, as defined by rule, acting on behalf of an owner, may enter
into agreements with the departments of finance and environmental
protection for the payment in installments of any delinquent real prop-
erty taxes, assessments, sewer rents, sewer surcharges, water rents, or
any other charges that are made a lien subject to the provisions of this
chapter. The proposed sale of a tax lien or tax liens on property shall
be cancelled when a property owner, or other eligible person acting on
behalf of an owner, enters into an agreement with the respective agency
for the payment of any such lien. Such rules shall also provide that
such property owners or such other eligible persons be given information
regarding eligibility for real property tax exemption programs prior to
entering into such agreements. As used in this subdivision, the term
"other eligible person" shall include a fiduciary, as defined in para-
graph three of subdivision (a) of section 11-1.1 of the estates, powers
and trusts law, acting with respect to the administration of the proper-
ty of an estate of a decedent who owned the real property as to which an
agreement under this subdivision is sought, or on behalf of a benefici-
ary of such real property from such estate. Any rules promulgated in
accordance with this subdivision defining "other eligible person" shall
include in such definition the means by which a beneficiary of real
property of the estate of a decedent who owned real property as to which
an agreement under this subdivision is sought meets the definition of
"other eligible person". Such means shall include the furnishing of any
death certificates or other relevant documents that substantiate the
claim of a beneficiary that they are the legal owner of the property.
Notwithstanding any other provision of this section, no more than one
such agreement with each respective agency may be in effect for a prop-
erty at any one time.
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1. If payments required from a property owner, or other eligible
person acting on behalf of an owner, pursuant to such an agreement are
not made for a period of six months, such property owner, or such other
eligible person, shall be in default of such agreement, and the tax lien
or tax liens on the subject property may be sold, provided, however,
that such default may be cured upon such property owner's, or such other
eligible person's, bringing all installment payments and all current
charges that are outstanding at the time of the default to a current
status, which shall include, but not be limited to, any outstanding
interest and fees, prior to the date of sale, provided, however, that
such property owner, or such other eligible person, may elect to cure
such default by entering into a new installment agreement with a down
payment of twenty percent or more, of all delinquent real property
taxes, assessments, sewer rents, sewer surcharges, water rents and other
charges that are made a lien subject to the provisions of this chapter,
including any outstanding interest and fees, prior to the date of sale.
If such default is not cured prior to the date of sale, such property
owner, and any other eligible person acting on behalf of an owner, shall
not be eligible to enter into an installment agreement for the subject
property for five years, unless there is a finding of extenuating
circumstances by the department that entered into the installment agree-
ment with the property owner or such other eligible person. Notwith-
standing the prohibition against entering into an installment agreement
for the subject property for five years, a property owner, or such other
eligible person, who has defaulted on an installment agreement and whose
lien has been sold and, subsequent to the sale of the lien, whose prop-
erty on which the lien was sold is subject to another tax lien that is
eligible to be sold, may elect to enter into another installment agree-
ment with respect to such other lien before the end of such five-year
period, provided that such property owner, or such other eligible
person, makes a down payment of twenty percent or more, of all delin-
quent real property taxes, assessments, sewer rents, sewer surcharges,
water rents and other charges that are made a lien subject to the
provisions of this chapter, including any outstanding interest and fees,
prior to the date of the sale. No such property owner, or such other
eligible person, may make the election that is authorized pursuant to
this paragraph to enter into an installment agreement with a down
payment more than once for the subject property. The standards relating
to defaults and cures of defaults of installment agreements set forth in
this paragraph apply to installment agreements entered into pursuant to
such election.
2. An installment agreement shall provide for payments by the property
owner, or other eligible person acting on behalf of an owner, on a quar-
terly or monthly basis, for a period not less than eight years and not
more than ten years, provided that a property owner, or other eligible
person acting on behalf of an owner, may elect a period less than eight
years. Except as provided in paragraph one of this subdivision, there
shall be no down payment required upon the property owner's, or such
other eligible person's, entering into the installment agreement with
the respective department, but the property owner, or other eligible
person acting on behalf of an owner, may elect to make a down payment.
With respect to installment agreements with the commissioner of environ-
mental protection, the determination of whether payments shall be on a
quarterly or monthly basis shall be in the discretion of such commis-
sioner, except as provided in paragraph three of this subdivision. With
respect to installment agreements with the commissioner of finance, the
A. 10030 290
determination of whether payments shall be on a quarterly or monthly
basis shall be in the discretion of the property owner, or other eligi-
ble person acting on behalf of an owner.
3. Beginning on January first, two thousand twelve, any property owner
who has entered into an installment agreement with the commissioner of
environmental protection pursuant to this subdivision and who has auto-
mated meter reading shall receive a consolidated monthly bill for
current sewer rents, sewer surcharges and water rents and any payment
due under such installment agreement.
4. No later than September first, two thousand eleven, the commission-
ers of finance and environmental protection shall promulgate rules
governing installment agreements, including but not limited to, the
terms and conditions of such agreements, the payment schedules, and the
definition and consequences of default; no later than June first, two
thousand fourteen, the commissioners of finance and environmental
protection shall promulgate rules governing eligibility of owners or
other eligible persons acting on behalf of owners to enter into install-
ment agreements.
5. All installment agreements executed on or after March first, two
thousand fifteen shall include a conspicuous statement that if payments
required from a property owner pursuant to such an agreement are not
made for a period of six months, such property owner shall be in default
of such agreement, and the tax lien or tax liens on the subject property
may be sold, provided, however, that such default may be cured upon such
property owner's bringing all installment payments and all current
charges that are outstanding at the time of the default to a current
status, which shall include, but not be limited to, any outstanding
interest and fees, prior to the date of sale. Such statement shall also
include a notification that if such default is not cured prior to the
date of sale, such property owner shall not be eligible to enter into an
installment agreement for the subject property for five years, unless
there is a finding of extenuating circumstances in accordance with rules
promulgated by the department that entered into the installment agree-
ment with the property owner. Such statement shall include the defi-
nition of extenuating circumstances. All installment agreements shall
also include a statement describing the conditions under which the prop-
erty owner, or any other eligible person acting on behalf of an owner,
may be eligible, after default, to enter into another installment agree-
ment after such default, in accordance with paragraph one of this subdi-
vision.
6. If a property owner, or other eligible person acting on behalf of
an owner, who has entered into an installment agreement with the depart-
ment of finance, fails to make a payment pursuant to such agreement,
then the department of finance shall, after the first missed payment,
mail a letter to the property owner, or other eligible person acting on
behalf of an owner, stating that such owner, or other eligible person,
is at risk of being in default of such agreement. The letter shall be
mailed after the first missed payment if the department has not received
payment within two weeks of the due date.
c. No later than January thirty-first, two thousand twenty-four, and
no later than every January thirty-first thereafter, the department of
finance shall submit a report to the mayor and to the speaker of the
council on real property with an assessed value of two hundred fifty
thousand dollars or less for which: (A) the owner of such real property
has entered into an agreement pursuant to this section for the payment
in installments of real property taxes, assessments or other charges
A. 10030 291
that are made a lien subject to the provisions of chapter three of this
title other than water rents, sewer rents, or sewer surcharges; and (B)
such unpaid taxes are subject to the interest rate described in subdivi-
sion e of section 11-313 of this chapter for the preceding calendar
year, including, but not limited to the following data:
1. the number of such agreements executed during the preceding calen-
dar year;
2. the number of such agreements that were in effect on December thir-
ty-first of the preceding calendar year;
3. the number of applications for such agreements that were received
during the preceding calendar year, and the number of such applications
that were not approved;
4. the average amount of property taxes and charges subject to such
agreements; and
5. the number of such agreements that entered into default and the
number of defaults that were cured.
§ 11-322.1 Hardship installment agreements. a. Definitions. For
purposes of this section, the following terms have the following mean-
ings:
1. Applicant. The term "applicant" means a property owner who files an
application for an installment agreement under this section. Such term
includes a property owner who has entered into an installment agreement
after filing such an application.
2. Default. The term "default" means that an installment payment
required under the installment agreement entered into under this section
remains unpaid in whole or in part for six months from the date payment
is required to be made, or any other tax or charge that becomes due on
the property during the term of such agreement remains unpaid in whole
or in part for six months.
3. Department. The term "department" means the department of finance.
4. Dwelling unit. The term "dwelling unit" means a unit in a condomin-
ium used primarily for residential purposes.
5. Fair market value. The term "fair market value" means the fair
market value of property as determined by the department or the fair
market value as determined by an appraisal obtained by the applicant
pursuant to paragraph four of subdivision g of this section, provided
that such appraisal shall be subject to review, and may be rejected, by
the department.
6. Income. The term "income" means the adjusted gross income for
federal income tax purposes as reported on an applicant's federal or
state income tax return for the applicable income tax year, subject to
any subsequent amendments or revisions; provided that if no such return
was filed for the applicable income tax year, "income" means the
adjusted gross income that would have been so reported if such a return
had been filed.
7. Income tax year. The term "income tax year" means the most recent
calendar year or fiscal year for which an applicant filed a federal or
state income tax return.
8. Net equity. The term "net equity" means the fair market value of
property minus any liabilities outstanding against such property, such
as mortgages, outstanding property taxes, water and sewer charges, and
any other liens on such property.
9. Property. The term "property" means real property classified as
class one pursuant to section eighteen hundred two of the real property
tax law or a dwelling unit in a condominium.
A. 10030 292
10. Property owner. The term "property owner" means an owner of real
property classified as class one pursuant to section eighteen hundred
two of the real property tax law or of a dwelling unit in a condominium,
or other eligible person, as defined in subdivision (i) of section 40-03
of title nineteen of the rules of the city of New York, acting on behalf
of such owner.
b. A property owner who satisfies the requirements described in subdi-
vision c and d, e or f of this section may enter into an agreement with
the department pursuant to this section for the payment in installments
of real property taxes, assessments or other charges that are made a
lien subject to the provisions of this chapter, except for sewer rents,
sewer surcharges or water rents. The entry into an installment agreement
pursuant to this section shall not suspend the accrual of interest
charged against the property pursuant to section 11-301 of this chapter.
A property owner may only have one installment agreement with the
department in effect at any one time.
c. Eligibility requirements for an installment agreement under this
section. To be eligible to enter into an installment agreement pursuant
to this section, an applicant must demonstrate that the following
requirements are met:
1. The applicant is a property owner.
2. The property shall have been the primary residence of the applicant
for an uninterrupted period of not less than one year immediately
preceding the date the application for the installment agreement is
submitted and continues to be the primary residence of the applicant
through the date the installment agreement is entered into. Hospitali-
zation or a temporary stay in a nursing home or rehabilitation facility
for a period of not more than three years shall not be considered a
change in primary residence.
3. The combined income of the applicant and of all the additional
property owners may not exceed eighty-six thousand four hundred dollars
for the income tax year immediately preceding the date of the applica-
tion for the installment agreement. The department shall promulgate
rules that establish a process for an applicant to seek an exception
from the requirement that income information from all additional proper-
ty owners be provided in cases of hardship.
d. Eligibility requirement for senior low-income installment agree-
ment. In addition to the requirements set forth in subdivision c of this
section, to be eligible to enter into a senior low-income installment
agreement pursuant to subdivision l of this section, an applicant must
be sixty-five years of age or older when the application is submitted.
e. Eligibility requirement for fixed length income-based installment
agreement. To be eligible to enter into a fixed length income-based
installment agreement pursuant to subdivision m of this section, an
applicant must satisfy the requirements set forth in subdivision c of
this section.
f. Eligibility requirements for extenuating circumstances income-based
installment agreement. In addition to the requirements set forth in
subdivision c of this section, for an applicant to be eligible to enter
into an extenuating circumstances income-based installment agreement
pursuant to subdivision n of this section, the department must make a
finding of extenuating circumstances pursuant to the process described
in paragraph four of subdivision (e) of section 40-03 of title nineteen
of the rules of the city of New York.
g. Initial application procedure. 1. An initial application for an
installment agreement under this section shall include:
A. 10030 293
(a) for installment agreements that provide for the payment of taxes
and charges that will accrue after the date of the installment agree-
ment, a title search identifying all mortgages and other liens on the
property; and
(b) the signature of a primary resident of the property, and if such
primary resident does not hold an ownership interest of at least fifty
percent in the subject property, the signature of any other owner of the
property who, in combination with such primary resident, holds an owner-
ship interest of at least fifty percent in such property, consenting to
the application for an installment agreement.
2. A complete application must be submitted to, and approved by, the
department.
3. An applicant may select a monthly or quarterly payment schedule and
may also select the amount that is required to be paid under the appli-
cable installment agreement pursuant to the options available pursuant
to subdivision l, m or n of this section.
4. An applicant who is the property owner of a dwelling unit in a
condominium may submit an appraisal obtained by such applicant of the
fair market value of such dwelling unit provided that:
(a) the valuation date of such appraisal is a date within, and such
appraisal shall have been prepared no more than, twelve months prior to
submission of an application;
(b) the cost of such appraisal shall be borne by such applicant; and
(c) the cost of such appraisal may not be included in the amount
subject to the installment agreement.
h. Renewal. 1. An installment agreement under this section shall
terminate unless an applicant files a renewal application each year. At
least sixty days before one year from the date such installment agree-
ment was entered into or renewed, the department shall mail each appli-
cant a renewal application, provided, however, that upon any such
renewal application being made by the applicant, any installment agree-
ment then in effect with respect to such applicant shall be deemed
renewed until such time as the department shall have found such appli-
cant to be either eligible or ineligible for the renewal of the install-
ment agreement but in no event for more than six additional months.
2. To renew an installment agreement under this section, an applicant
must submit a renewal application to the department on or before one
year from the date such installment agreement was entered into and each
year thereafter for which renewal is sought. To be eligible to renew
such agreement, an applicant must demonstrate that:
(a) the property continues to be the primary residence of such appli-
cant and such residence has been uninterrupted since the date the
initial installment agreement was entered into; and
(b) the combined income of such applicant and of all the additional
property owners does not exceed fifty-eight thousand three hundred nine-
ty-nine dollars for the income tax year immediately preceding the date
of the renewal of such installment agreement, except that an applicant
for the renewal of a fixed length income-based installment agreement
pursuant to subdivision m of this section is not required to submit
income information.
i. Effects of installment agreement on tax lien and tax lien sale. 1.
The execution of an installment agreement pursuant to this section shall
not suspend the accrual of liens, interest and other charges against the
property, which continue to accrue in accordance with applicable law.
2. A property for which an application has been submitted that
contains proof of income and, for a senior low-income installment agree-
A. 10030 294
ment described in subdivision l of this section, proof of age, and that
is signed, but is otherwise incomplete, shall be withdrawn from the next
tax lien sale. Such property, however, may be included in the tax lien
sale subsequent to the next tax lien sale if a completed application is
not submitted within forty-five days from the date of the additional
information request notice sent to the applicant by the department or if
the completed application is denied.
j. Amount subject to installment agreement. 1. Each approved install-
ment agreement shall set forth terms of repayment, including (a) the
frequency of payments, (b) the percentage of the taxes and charges that
forms the basis of the required payment for the senior low-income
installment agreement described in subdivision l of this section, or the
percentage of the combined income of the property owners for the income
tax year immediately preceding the initial application that forms the
basis of the required payment for the installment agreement for the
fixed length income-based and the extenuating circumstances income-based
installment agreements described in subdivisions m and n respectively,
(c) the payment schedule, and (d) the payment amount.
2. A lien sold in a tax lien sale before the date of an application
for an installment agreement is not eligible to be included in an
installment agreement under this section.
3. The applicant may choose to include the cost of the title search
required to be submitted with an application pursuant to subparagraph
(a) of paragraph one of subdivision g of this section in the amount
subject to the installment agreement. If an applicant chooses to include
such cost, the applicant may either select a title company to conduct
the required search and present documentation to the department of the
cost, or direct the department to use a title company selected by the
department. The department shall pay the cost of the title search and be
reimbursed by the applicant through the addition of the cost to the
amount subject to the installment agreement. The applicant shall make
such reimbursement in the first year of the installment agreement, in
monthly or quarterly payments, consistent with the payment frequency
selected for the installment agreement. The cost of the title search
shall bear interest at the same rate as the interest on unpaid real
property tax as provided in section 11-224.1 of this title.
4. (a) Any time the amount of the liens on a property subject to an
installment agreement under this section exceeds twenty-five percent of
the net equity in such property, the applicant shall pay all taxes and
charges imposed against the property that exceed twenty-five percent of
the net equity in the property as such taxes and charges become due, in
addition to the payment amount set forth in the installment agreement.
(b) Notwithstanding subparagraph (a) of this paragraph and provided
that section five hundred eighty-one of the real property tax law is in
effect in the same form as such section was in effect as of the effec-
tive date of this section, for property that is a dwelling unit in a
condominium subject to an installment agreement under this section and
for which an appraisal has not been obtained pursuant to paragraph four
of subdivision g of this section, any time the amount of the liens
subject to such agreement exceeds fifty percent of the net equity in
such property, the applicant shall pay all taxes and charges imposed
against such property that exceed fifty percent of the net equity in
such property as such taxes and charges become due, in addition to the
payment amount set forth in the installment agreement. For property that
is a dwelling unit in a condominium and for which an appraisal has been
obtained pursuant to paragraph four of subdivision g of this section,
A. 10030 295
any time the amount of the liens subject to an installment agreement
under this section exceeds the higher of (i) fifty percent of the net
equity in such property based on the fair market value determined by the
department; or (ii) twenty-five percent of the net equity in such prop-
erty based on the fair market value determined by the appraisal obtained
by the applicant, the applicant shall pay all taxes and charges imposed
against such property that exceed the higher of the amounts described by
clauses (i) and (ii) of this subparagraph as such taxes and charges
become due, in addition to the payment amount set forth in the install-
ment agreement.
(c) The department shall provide each applicant with a written projec-
tion at the time the installment agreement is entered into as to when
the twenty-five or fifty percent threshold, as determined pursuant to
subparagraphs (a) and (b) of this paragraph, will be exceeded. The
department shall also notify each property owner in writing when the
amount of the liens exceeds such threshold. Failure by the department to
provide an applicant with such projection or to notify a property owner
when the amount of the liens exceeds the applicable threshold, however,
shall not affect the validity of the installment agreement that has been
entered into, nor shall any claim arise or exist against the commission-
er of finance or any officer or agency of the city by reason of such
failure to provide such projection or such notification.
5. If at any time the department determines that the fair market value
of a property subject to an installment agreement under this section has
increased, an applicant may request that the net equity in such property
be recalculated and the net equity amount included in such installment
agreement be adjusted to reflect the recalculated net equity in such
property.
6. If the combined income of all of the property owners exceeds
fifty-eight thousand three hundred ninety-nine dollars for the income
tax year immediately preceding the date of making a renewal application
pursuant to subdivision h of this section, the applicant shall pay all
taxes and charges imposed against the property after the date of such
renewal application as such taxes and charges become due, in addition to
the payment amount set forth in such installment agreement.
k. Termination of installment agreement. 1. An installment agreement
shall be terminated when any of the following occurs:
(a) The property whose liens are the subject of such installment
agreement is no longer the primary residence of the applicant. An appli-
cant whose installment agreement has been terminated because of such
reason may apply to enter into an installment agreement pursuant to
section 11-322 of this chapter.
(b) The fixed term of the installment agreement expires. An applicant
whose installment agreement has been terminated because of such expira-
tion may apply to enter into an installment agreement pursuant to
section 11-322 of this chapter or to this section.
(c) The applicant is deceased.
(d) The applicant opts out of an installment agreement without a fixed
term as described in paragraph one of subdivision l of this section. An
applicant who opts out of such agreement may apply to enter into an
installment agreement pursuant to section 11-322 of this chapter or to
this section.
(e) The applicant does not file a timely renewal application in
accordance with the provisions of subdivision h of this section.
A. 10030 296
(f) The applicant is in default and has not cured such default as
provided in subparagraph (a) of paragraph three of this subdivision
prior to the next tax lien sale.
(g) The applicant has defaulted on the installment agreement and has
cured such default by entering into a new installment agreement pursuant
to clause two or three of subparagraph (a) of paragraph three of this
subdivision.
2. If an installment agreement is terminated, all taxes and charges
that accrued before such termination are required to be paid. If such
taxes and charges are not paid within nine months of such termination,
the tax lien or tax liens on such property may be sold. Notwithstanding
the preceding sentence, if an agreement is terminated pursuant to
subparagraph (c) of paragraph one of this subdivision, a surviving
spouse has eighteen months from the death of the applicant to pay all
taxes and charges on such property before the tax lien or tax liens on
such property may be sold. If such surviving spouse is a property owner
he or she may enter into a separate installment agreement pursuant to
section 11-322 of this chapter or subdivision l, m or n of this section,
as long as he or she meets the eligibility requirements for the respec-
tive installment agreement.
3. (a) An applicant may cure a default by:
(i) bringing all installment payments and all current charges, includ-
ing but not limited to any interest and fees, that are outstanding at
the time of the default to a current status prior to the date of the tax
lien sale;
(ii) entering into a new installment agreement with a down payment of
twenty percent or more, of all delinquent real property taxes, assess-
ments, sewer rents, sewer surcharges, water rents and other charges that
are made a lien subject to the provisions of this chapter, including any
outstanding interest and fees, prior to the date of such sale; or
(iii) entering into a new installment agreement under this section if
the department has made a finding of extenuating circumstances pursuant
to the process described in paragraph four of subdivision (e) of section
40-03 of title nineteen of the rules of the city of New York.
(b) If a default is not cured prior to the date of the tax lien sale,
such applicant shall not be eligible to enter into an installment agree-
ment for the subject property for five years, unless the department has
made a finding of extenuating circumstances pursuant to the process
described in paragraph four of subdivision (e) of section 40-03 of title
nineteen of the rules of the city of New York.
(c) Notwithstanding the prohibition in subparagraph (b) of this para-
graph against entering into an installment agreement for the subject
property for five years, an applicant who has defaulted on an install-
ment agreement and whose lien has been sold and, after the sale of the
lien, whose property on which the lien was sold is subject to another
tax lien that is eligible to be sold, may apply to enter into another
installment agreement with respect to such other lien before the end of
such five-year period, provided that such applicant makes a down payment
of twenty percent or more, of all delinquent real property taxes,
assessments, sewer rents, sewer surcharges, water rents and other charg-
es that are made a lien subject to the provisions of this chapter,
including any outstanding interest and fees, prior to the date of the
tax lien sale. An applicant shall not be eligible to enter an install-
ment agreement with a down payment under this subparagraph more than
once for the subject property.
A. 10030 297
(d) If a property owner who has entered into an installment agreement
with the department pursuant to this section fails to make a payment
pursuant to such agreement, the department shall, after the first missed
payment, mail a letter or send an email, when such address is known, to
the property owner stating that such owner is at risk of being in
default of such agreement. The letter or email shall be sent after the
first missed payment if the department has not received payment within
two weeks of the due date. Failure by the department to mail such letter
or send such email, however, shall not affect the validity of the
installment agreement that has been entered into, nor shall any claim
arise or exist against the commissioner of finance or any officer or
agency of the city by reason of such failure to mail such letter or send
such email.
l. Senior low-income installment agreement. 1. At the option of the
applicant, a senior low-income installment agreement may provide for
payments for a fixed period of time or for payments without a fixed
period of time. If the applicant selects an installment agreement with a
fixed time period, the applicant may select the term of the agreement.
The applicant may switch from an installment agreement without a fixed
time period to an installment agreement with a fixed time period, or
from an installment agreement with a fixed time period to an installment
agreement without a fixed time period, at any point.
2. A senior low-income installment agreement shall provide for the
payment of both a percentage of taxes and charges that have accrued, if
any, and a percentage of taxes and charges that will accrue after the
date of the installment agreement. The applicant may elect to pay an
installment amount based on zero percent, twenty-five percent, fifty
percent or seventy-five percent of the annual taxes and charges that
have accrued, if any, and that will accrue. If the applicant selects an
agreement with a fixed time period, the required payment shall be based
on the percentage selected and the term selected. If the applicant
selects an agreement without a fixed time period, the required payment
shall be based on the percentage selected for prospective taxes and
charges and a partial or full payment of the percentage of taxes and
charges that have accrued, if any. The applicant may adjust the payment
percentage at any point during the installment agreement, but may not
make more than one such adjustment during any six-month period.
m. Fixed length income-based installment agreement. 1. At the option
of the applicant, a fixed length income-based installment agreement
pursuant to this subdivision may provide for the payment of (a) only
taxes and charges that have accrued or (b) taxes and charges that have
accrued and taxes and charges that will accrue over the next fiscal
year. If option (a) is selected, the applicant shall pay all taxes and
charges that become due on the property after the installment agreement
is entered into in addition to the payment schedule provided in the
installment agreement. If option (b) is selected, the applicant shall
pay all taxes and charges that will accrue on the property after the
installment agreement has been in effect for one year in addition to the
payment schedule provided in the installment agreement.
2. The annual payment amount required pursuant to an installment
agreement described by this subdivision shall be based on a percentage
of the combined income of all of the property owners for the income tax
year immediately preceding the initial application for such installment
agreement. The applicant may select a percentage of two percent, four
percent, six percent or eight percent of such combined income. The
installment payment shall be calculated by dividing the annual payment
A. 10030 298
amount by twelve or four, depending on whether a monthly or quarterly
payment schedule is selected. The term of the agreement shall be calcu-
lated by dividing the taxes and charges included in the agreement pursu-
ant to paragraph one of this subdivision by the installment payment
determined by the calculation described in this paragraph.
3. An applicant may adjust the payment percentage at any point during
the installment agreement, but may not make more than one such adjust-
ment during any six-month period.
n. Extenuating circumstances income-based installment agreement. 1.
An extenuating circumstances income-based installment agreement shall
provide for the payment, during the period of such agreement, of a
percentage of taxes and charges that have accrued on the property and
taxes and charges that accrue after the date of the installment agree-
ment.
2. The annual payment amount required pursuant to an installment
agreement described by this subdivision shall be based on a percentage
of the combined income of all of the property owners for the income tax
year immediately preceding the initial application for an installment
agreement. The applicant may select a percentage of two percent, four
percent, six percent, or eight percent of such combined income. Such
installment payment shall be calculated by dividing the annual payment
amount by twelve or four, depending on whether a monthly or quarterly
payment schedule is selected. The installment agreement shall be for a
term of one year but may be extended on a yearly basis if the department
determines that the extenuating circumstances continue.
3. An applicant may adjust the payment percentage at any point during
the installment agreement, but may not make more than one such adjust-
ment during any six-month period.
o. After an applicant has entered into an installment agreement with
the department pursuant to this section, the department shall record the
entry of such agreement on the automated city register information
access system. Failure by the department to record such agreement,
however, shall in no manner affect the validity of such agreement, nor
shall any claim arise or exist against the commissioner of finance or
any officer or agency of the city by reason of such failure to record.
p. All installment agreements executed pursuant to this section on or
after the effective date of this subdivision shall include:
1. a statement that if payments required from an applicant pursuant to
such an agreement are not made for a period of six months, such appli-
cant shall be in default of such agreement, and the tax lien or tax
liens on the subject property may be sold, provided, however, that such
default may be cured upon such applicant's bringing all installment
payments and all current charges that are outstanding at the time of the
default to a current status, which shall include, but not be limited to,
any outstanding interest and fees, prior to the date of the tax lien
sale;
2. a notification that if such default is not cured prior to the date
of the tax lien sale, such property owner shall not be eligible to enter
into an installment agreement for the subject property for five years,
unless a finding of extenuating circumstances has been made by the
department pursuant to the process described in paragraph four of subdi-
vision (e) of section 40-03 of title nineteen of the rules of the city
of New York;
3. the definition of extenuating circumstances pursuant to such para-
graph;
A. 10030 299
4. a statement describing the conditions under which the property
owner may be eligible, after default, to enter into another installment
agreement in accordance with paragraph three of subdivision k of this
section; and
5. the date by which the applicant must submit a renewal application
each year.
q. Every January thirty-first, the department shall submit to the
speaker of the council a report on the usage of the installment agree-
ments set forth in this section in the prior calendar year, including,
but not limited to the following data, disaggregated by installment
agreement type:
1. the number of new installment agreements executed;
2. the number of installment agreements in effect on December thirty-
first of each year;
3. the number of applications for installment agreements received, the
number of applications not approved, and the reasons for disapproval;
4. for the senior low-income installment agreements, the number of new
installment agreements executed at zero percent, twenty-five percent,
fifty percent and seventy-five percent;
5. for the fixed length and extenuating circumstances income-based
installment agreements, the number of new installment agreements
executed at two percent, four percent, six percent or eight percent;
6. the average amount of property taxes and charges addressed by the
installment agreement;
7. the number of installment agreements that entered into default, the
number of defaults that were cured and the method by which they were
cured;
8. the number of installment agreements that were terminated, by
reason of termination;
9. the number of installment agreements that were renewed, including
whether such renewal occurred before or during the six-month period
described in paragraph one of subdivision h of this section; and
10. the number of installment agreements where the amount of liens on
the subject property exceeded the applicable percent of the net equity
in such property.
r. The department shall publicize the availability of the installment
agreements set forth in this section so as to maximize public awareness
of such agreements.
§ 11-323 Commissioner of finance to conduct sale. The commissioner of
finance or his or her designee shall conduct the sales hereinbefore
provided to be made, or the commissioner may, in his or her discretion,
contract with any other person to conduct competitive sales of tax
liens.
§ 11-324 Deposits and forfeits. The commissioner of finance may
require from each purchaser of a tax lien or tax liens, in cash or cash
equivalent in immediately available funds in the discretion of such
commissioner, a deposit of at least five per cent of the cash portion of
the sale price of the tax lien or tax liens purchased by him or her, as
liquidated damages, on a date determined by the commissioner of finance.
The balance shall be paid to the commissioner of finance in cash or cash
equivalent in immediately available funds or such other consideration
acceptable to the commissioner of finance or any combination thereof, in
his or her discretion. For purposes of this chapter "cash equivalent"
shall mean a cashier's check, bank check, certified check, money order,
or such other paper instrument as the commissioner of finance shall
prescribe. Such deposit and balance may also be paid by electronic funds
A. 10030 300
transfer. For purposes of this chapter, "electronic funds transfer"
shall mean any transfer of funds, other than a transaction originated by
check, draft or similar paper instrument, which is initiated using a
format prescribed by the commissioner of finance. A tax lien certificate
shall be made and delivered to the purchaser upon payment of the sale
price. In case any purchaser shall default in any obligation under the
terms and conditions of the tax lien sale, then the amount deposited by
the purchaser shall be forfeited to the city, and the tax lien or tax
liens upon the property affected by such purchase may be sold again at
the discretion of the commissioner of finance pursuant to section 11-319
of this chapter. All deposits forfeited as aforesaid shall be paid into
the general fund.
§ 11-327 Tax lien certificates; operation. A tax lien certificate
shall operate to transfer and assign the tax lien upon the property
described therein for the taxes, assessments, sewer rents, sewer
surcharges, water rents, any other charges that are made a lien subject
to the provisions of this chapter, the costs of any notices and adver-
tisements given pursuant to this chapter, any other charges that are due
and payable, a surcharge pursuant to section 11-332 of this chapter, and
interest and penalties thereon.
§ 11-328 Contents of a tax lien certificate. A tax lien certificate
shall contain a transfer and assignment by the city of the tax lien sold
to the purchaser, the date of the sale, the aggregate amount of the tax
lien so transferred, and the items of taxes, assessments, sewer rents,
sewer surcharges, water rents, any other charges that are made a lien
subject to the provisions of this chapter, the costs of any advertise-
ments and notices given pursuant to this chapter, any other charges that
are due and payable, a surcharge pursuant to section 11-332 of this
chapter, and interest and penalties thereon comprising the tax lien, the
rate of interest which the tax lien certificate will bear, the date when
the amounts under such tax lien are due pursuant to section 11-332 of
this chapter, and a description of the property affected by the tax
lien, which description shall include the designation of such property
on the tax map, by its lot number and the number of the block in which
it is contained, and such other identifying information as the commis-
sioner of finance or his or her designee may deem proper to add. For
purposes of this section, the words "date of sale" shall have the same
meaning provided in subdivision (e) section 11-320 of this chapter. Each
tax lien certificate shall be executed by the commissioner of finance or
his or her designee by manual or facsimile signature and shall be
acknowledged by the manual or facsimile signature of the officer
subscribing the same in the manner in which a deed is required to be
acknowledged to be recorded in the county in which the property affected
is situated. The commissioner of finance may designate an agent for
purposes of authenticating any such signature.
§ 11-330 Record of tax lien certificates. The commissioner of finance
or his or her designee, shall keep in his or her office a public record
of sales of tax liens, and a copy of each tax lien certificate issued by
such commissioner or his or her designee. Assignments of tax lien
certificates duly acknowledged may be filed and recorded in the office
of the commissioner of finance or his or her designee. A tax lien
certificate and any assignment thereof, duly acknowledged, shall be
deemed conveyances under article eight of the real property law, and may
be recorded in the office of the recording officer of any county in
which the real property which it affects is situated. Tax lien certif-
icates and all assignments thereof shall be recorded by recording offi-
A. 10030 301
cers in the same manner as mortgages and assignments thereof, but with-
out payment of tax under article eleven of the tax law. Neither the tax
lien nor the rights transferred or created by a tax lien certificate
shall be impaired by failure of a recording officer to record a tax lien
certificate made by the city through the commissioner of finance or his
or her designee.
§ 11-331 Records to be competent evidence. The record in the office of
the commissioner of finance or his or her designee of sales of tax
liens, of a tax lien certificate, and of a copy of a tax lien certif-
icate, and of an assignment of a tax lien certificate, a record of a tax
lien certificate in the office of a recording officer, and of an assign-
ment of a tax lien certificate, duly acknowledged, in the office of a
recording officer, shall each be evidence in any court in the state
without further proof. A transcript of any record enumerated in this
section, duly certified, shall be evidence in any court in the state
with like effect as the original instrument of record.
§ 11-332 Rights of purchaser of tax lien. a. Any purchaser of a tax
lien or tax liens shall stand in the same position as the city and shall
have all the rights and remedies that the city would have had if the tax
lien or tax liens had not been sold.
b. The aggregate amount of each tax lien transferred pursuant to this
chapter shall be due and payable one year from the date of the sale.
Until such aggregate amount is fully paid and discharged, the holder of
the tax lien certificate shall be entitled to receive interest on such
aggregate amount from the date of sale, and semi-annually at the rate of
interest applicable in accordance with section 11-319 of this chapter.
If such aggregate amount is partially paid, the holder of the tax lien
certificate shall be entitled to receive interest only on the amount
that remains unpaid. Notwithstanding the foregoing sentence, the holder
of the tax lien certificate shall be entitled to receive and retain a
surcharge equal to five percent of the lien arising pursuant to the
provisions of this chapter as a result of the nonpayment of taxes,
assessments, sewer rents, sewer surcharges, water rents, any other
charges that are made a lien subject to the provisions of this chapter,
the costs of any advertisements and notices given pursuant to this chap-
ter, any other charges that are due and payable, and interest and penal-
ties thereon. Any amounts due shall be paid directly to the holder of
the tax lien certificate. At the option of the holder of any tax lien
certificate the aggregate amount thereof shall become subject to fore-
closure after default in the payment of interest for thirty days or
after default for six months after the date of sale stated in the tax
lien certificate in accordance with subdivision (d) of section 11-320
and section 11-328 of this chapter in the payment of any taxes, assess-
ments, sewer rents, sewer surcharges, water rents, any other charges
that are made a lien subject to the provisions of this chapter, or the
interest or penalties thereon which become a lien on or after the date
of sale of the tax lien transferred by such tax lien certificate. At his
or her option, the holder of the tax lien certificate may satisfy any
such subsequent tax lien on the same property, and shall, by virtue of
such satisfaction, be deemed to be in the same position as if he or she
were a purchaser of a tax lien certificate for such subsequent tax lien,
provided, however, that such holder shall not be entitled to receive a
five percent surcharge on such subsequent tax lien pursuant to this
section. The rate of interest on such subsequent lien shall be the rate
of interest applicable to tax lien certificates pursuant to section
11-319 of this chapter. The commissioner of finance or his or her desig-
A. 10030 302
nee, at the request of the purchaser of such subsequent lien, shall
issue a tax lien certificate for such lien pursuant to sections 11-327
and 11-328 of this chapter. Upon issuance of such certificate, the
commissioner of finance or his or her designee shall provide such notice
as is required pursuant to section 11-320(d) of this chapter. Failure to
provide notice pursuant to this subdivision shall not affect the validi-
ty of any transfer of a subsequent tax lien or tax liens pursuant to
this subdivision. Any person having a legal or beneficial interest in
property affected by a tax lien certificate may satisfy the same at any
time upon payment of the amounts due with interest at the rate applica-
ble in accordance with section 11-319 of this chapter. Upon satisfaction
of the tax lien, the holder thereof shall issue to the person who satis-
fied such tax lien a certificate of discharge, certifying that the tax
lien has been paid or has been otherwise satisfied, in such recordable
form as has been approved by the commissioner of finance. For purposes
of this section, the words "date of sale" shall have the same meaning
provided in subdivision (e) of section 11-320 of this chapter.
§ 11-333 Discharge of tax lien. A tax lien sold pursuant to the
provisions of this chapter may be discharged by presenting the certif-
icate of discharge issued by the holder of the tax lien pursuant to
section 11-332 of this chapter to the recording officer of the county in
which the real property that it affects is situated, and any recording
officer to whom such certificate of discharge is presented shall record
the same.
§ 11-334 Exemption from taxation. Tax liens and tax lien certificates
shall be exempt from taxation by the state or any local subdivisions
thereof, except from the taxes imposed by article ten of the tax law.
The real property affected by any tax lien shall not be exempt from
taxation by reason of this section.
§ 11-335 Foreclosure of tax liens. If the amount of any tax lien which
shall have been transferred by a tax lien certificate shall not be paid
when under its terms and the provisions of section 11-332 of this chap-
ter such amount shall be due, the holder of such tax lien certificate
may maintain an action in the supreme court to foreclose such tax lien.
The holder of such tax lien certificate shall notify the commissioner of
finance or his or her designee in writing whenever he or she commences
such action at the time of filing of such action, and shall notify the
commissioner of finance in writing of the resolution of such action,
including any settlement of such action, within thirty days of such
resolution. In an action to foreclose a tax lien any person shall be a
proper party of whom the plaintiff alleges that such person has or may
have or that the plaintiff has reason to believe that such person has or
may have an interest in or claim upon the property affected by the tax
lien. A plaintiff in an action to foreclose a tax lien shall recover
reasonable attorney's fees for maintaining such action. Except as other-
wise provided in this chapter an action to foreclose a tax lien shall be
regulated by the provisions of the civil practice law and rules and by
all other provisions of law, and rules of practice applicable to actions
to foreclose mortgages on real property. The people of the state of New
York or the city of Staten Island may be made party to an action to
foreclose a tax lien in the same manner as a natural person. Where the
people of the state of New York or the city of Staten Island are made a
party defendant the complaint shall set forth, in addition to the other
matters required to be set forth by law, detailed facts showing the
particular nature of the interest in or the lien on such property of the
people of the state of New York or the city of Staten Island, and
A. 10030 303
detailed facts showing the particular nature of the interest in or the
lien on such property which plaintiff has reason to believe that the
people of the state of New York or the city of Staten Island have or may
have in such property, and the reason for making the people of the state
of New York or the city of Staten Island a party defendant. Upon failure
to state such facts the complaint shall be dismissed as to the people of
the state or the city of Staten Island.
§ 11-336 Pleading tax lien certificate. Whenever a cause of action,
defense or counterclaim, is for the foreclosure of a tax lien, or is in
any manner founded upon a tax lien or a tax lien certificate, the
production in evidence of an instrument executed by the commissioner of
finance or his or her designee in the form prescribed in section 11-328
of this chapter for a tax lien certificate subscribed by or in behalf of
the commissioner of finance or his or her designee shall be presumptive
evidence that the lien purported to be transferred by such an instrument
was a valid and enforceable lien, and that it has been duly assigned to
the purchaser, and it shall not be necessary to plead or prove any act,
proceeding, notice or action, preceding the delivery of such tax lien
certificate nor to establish the validity of the tax lien transferred by
such tax lien certificate. If a party or person in interest in any such
action or proceeding claims that a tax lien is irregular or invalid, or
that there is any defect therein or that a tax lien certificate is
irregular, invalid or defective, such invalidity, irregularity or defect
must be specifically pleaded or set forth, and must be established
affirmatively by the party or person pleading or setting forth the same.
§ 11-337 Judgment upon tax lien. In every action for the foreclosure
of a tax lien, and in every action or proceeding in which a cause of
action, defense or counterclaim is in any manner founded upon a tax lien
or a tax lien certificate, such tax lien certificate and the tax lien
which it transfers shall be presumed to be regular and valid and effec-
tual to transfer to the purchaser named therein a valid and enforceable
tax lien. Unless in such an action or proceeding such tax lien or tax
lien certificate be found to be invalid, they shall be adjudged to be
enforceable and valid, for the amount thereof and the interest to which
the holder may be entitled and a tax lien transferred by a tax lien
certificate effectual to transfer such tax lien to the purchaser named
therein.
§ 11-338 Judgment of foreclosure of tax lien; sale. In an action to
foreclose a tax lien, unless the defendants obtain judgment, the plain-
tiff shall be entitled to a judgment establishing the validity of the
tax lien so far as the same shall not be adjudged invalid and of the tax
lien certificate and directing the sale of the real, personal or mixed
property affected thereby, or such part thereof as shall be sufficient
to discharge the tax lien, or such items thereof as shall not be
adjudged invalid together with the expense of the sale, and the costs of
the action.
§ 11-339 City may purchase at sale. At a sale pursuant to judgment in
an action to foreclose a tax lien or at any sale free of tax liens, the
city, without authorization other than hereby given, may purchase any
property that is the subject of the sale.
§ 11-340 Effect of judgment foreclosing tax lien. Every final judg-
ment in an action to foreclose a tax lien shall be binding upon, and
every conveyance upon a sale pursuant thereto, shall transfer to and
vest in the purchaser all the right, title, interest and estate in and
claim upon the real property affected by such judgment, of the plain-
tiff, each defendant upon whom the summons is served, each person claim-
A. 10030 304
ing from, through or under such a defendant by title accruing after the
filing of notice of pendency of the action or after the entry of judg-
ment and filing of the judgment roll in the proper county clerk's
office, and each person not in being when the judgment is rendered, who
afterwards may become entitled to a beneficial interest attaching to, or
an estate or interest in such real property or any portion thereof,
provided that the person presumptively entitled to such beneficial
interest, estate or interest is a party to such action or bound by such
judgment. So much of section three hundred seventeen of the civil prac-
tice law and rules as requires the court to allow a defendant to defend
an action after final judgment shall not apply to an action to foreclose
a tax lien. Delivery of the possession of real property affected by a
judgment to foreclose a tax lien may be compelled in the manner
prescribed in section two hundred twenty-one of the real property
actions and proceedings law.
§ 11-341 Surplus. Any surplus of the proceeds of the sale, after
paying the expenses of the sale, and all taxes, assessments, sewer
rents, sewer surcharges, water rents, any other charges made a lien
subject to the provisions of this chapter, the costs of any advertise-
ments and notices given pursuant to this chapter, any other charges that
are due and payable, any surcharge pursuant to section 11-332 of this
chapter and interest and penalties thereon, including such amounts which
accrued or became a lien on and after the date of sale of the tax lien
or tax liens and up to and including the date of the sale of the proper-
ty in foreclosure, and satisfying the amount of such tax lien or tax
liens and interest and the costs of the action, must be paid into court,
for the use of the person or persons entitled thereto. If any part of
the surplus remains in court for the period of three months, and no
application has been made therefor, the court must, and, if an applica-
tion therefor is pending, the court may direct such surplus to be
invested at interest, for the benefit of the person or persons entitled
thereto, to be paid upon the direction of the court.
§ 11-342 Foreclosed tax lien not arrears. Any party to an action to
foreclose a tax lien or any purchaser or any party in interest may give
notice of such foreclosure to the city collector and after such notice
the items which constituted the tax lien thus foreclosed shall not be
entered by the city collector in any yearly assessment-roll, so long as
the judgment of foreclosure of such lien remains in force.
§ 11-347 Corporation counsel to protect city in all proceedings relat-
ing to tax liens. It shall be the duty of the corporation counsel to
protect the interest of the city in all matters, actions and proceedings
relating to tax liens and tax lien certificates; to intervene on behalf
of the city or to make the city a party to any action in which the
corporation counsel believes it to be to the interest of the city so to
do, by reason of any matter arising under or relating to any tax lien or
tax lien certificate, or advertisement of sale of tax liens. The corpo-
ration counsel in his or her discretion may represent the purchaser of a
tax lien or the holder of a tax lien certificate in any action in which
the corporation counsel believes it to be in the interest of the city so
to do, by reason of any matter arising under or relating to any tax lien
or tax lien certificate, or advertisement of sale of tax liens. All
costs recovered in any action or proceeding conducted or defended by the
corporation counsel pursuant to this section shall belong to the city
and shall be collected, applied and disposed of in the same manner as
are other costs recovered by the city.
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§ 11-349 Lost tax lien certificate; delivery of duplicate in case of.
Whenever any tax lien certificate given by the commissioner of finance
or his or her designee, as in this chapter provided, shall be lost, the
commissioner of finance or his or her designee may receive evidence of
such loss, and on satisfactory proof of the fact may direct the
execution and delivery of a duplicate to such person or persons who
shall appear entitled thereto, and may also, in the commissioner's
discretion, require a bond of indemnity to the city.
§ 11-350 Affidavits of publication and mailing of necessary notices to
be preserved. It shall be the duty of the commissioner of finance or his
or her designee to procure, preserve and register at the department of
finance, affidavits of the publication and mailing of all the advertise-
ments and notices by this chapter required to be published and mailed,
and such affidavits shall be presumptive proof of such publication and
mailing in all the courts of this state.
§ 11-353 Cancellation of taxes, assessments, water rents, sewer rents,
sewer surcharges, any charges that are made a lien subject to the
provisions of this chapter, the costs of any advertisements and notices
given pursuant to this chapter, any other charges that are due and paya-
ble, a surcharge pursuant to section 11-332 of this chapter, and inter-
est and penalties thereon. Whenever the city has heretofore or shall
hereafter become vested with title to property acquired by virtue of tax
enforcement foreclosure proceedings, or by deed in lieu thereof, the
commissioner of finance, or his or her designee, shall cancel all unpaid
real estate taxes, tax lien certificates, assessments, water rents,
sewer rents, sewer surcharges, any charges that are made a lien subject
to the provisions of this chapter, the costs of any advertisements and
notices given pursuant to this chapter, any other charges that are due
and payable, a surcharge pursuant to section 11-332 of this chapter, and
interest and penalties thereon upon which the foreclosure action was
predicated. Upon the sale of such property and the conveyance of the
title thereof by the city, the commissioner of finance, or his or her
designee, shall cancel all unpaid real estate taxes, assessments, water
rents, sewer rents, sewer surcharges, any charges that are made a lien
subject to the provisions of this chapter, the costs of any advertise-
ments and notices given pursuant to this chapter, any other charges that
are due and payable, a surcharge pursuant to section 11-332 of this
chapter, and interest and penalties thereon that shall have accrued
during the period between the date of the last unpaid item upon which
the foreclosure action was predicated and the date of conveyance of
title. The commissioner of finance, or his or her designee, shall enter
notations of such cancellations in the appropriate records for each such
parcel of property.
§ 11-354 Additional method to enforce payment of tax liens held by the
city. (a) Notwithstanding any other provision of law and notwithstanding
any omission to hold a tax lien sale, whenever any tax, assessment,
sewer rent, sewer surcharge, water rent, any charge that is made a lien
subject to the provisions of this chapter or chapter four of this title,
or interest and penalties thereon, has been due and unpaid for a period
of at least one year from the date on which the tax, assessment or other
legal charge represented thereby became a lien, or in the case of any
class one property or any class two property that is a residential
condominium or residential cooperative, as such classes of property are
defined in subdivision one of section eighteen hundred two of the real
property tax law, or in the case of a multiple dwelling owned by a
company organized pursuant to article eleven of the private housing
A. 10030 306
finance law with the consent and approval of the department of housing
preservation and development, for a period of at least three years from
the date on which the tax, assessment or other legal charge became a
lien, the city, as owner of a tax lien, may maintain an action in the
supreme court to foreclose such lien. Such action shall be governed by
the procedures set forth in section 11-335 of this chapter; provided,
however, that such parcel shall only be sold to the highest responsible
bidder. Such purchaser shall be deemed qualified as a responsible bidder
pursuant to such criteria as are established in rules promulgated by the
commissioner of finance after consultation with the commissioner of
housing preservation and development.
(b) At a sale pursuant to a judgment in an action brought pursuant to
subdivision (a) of this section to foreclose a tax lien, the city may
purchase property subject to such lien in accordance with the provisions
of section 11-339 of this chapter.
(c) The provisions of this section shall not affect any existing reme-
dy or procedure for the enforcement or foreclosure of tax liens provided
for in this code or any other law, but the remedy provided herein for
foreclosure of tax liens shall be in addition to any other remedies or
procedures provided by any general, special or local law. Notwithstand-
ing any other provision of this code, the commissioner of finance shall
be authorized to agree to forebear to commence an in rem action against
property which has an outstanding and unredeemed tax lien certificate
previously sold by the city and held by a third party pursuant to this
chapter.
§ 11-355 Reporting. The commissioner of finance shall submit an annual
report to the council concerning the sale or sales of tax liens during
the preceding year pursuant to this chapter. Such report shall include
the following information regarding such sale or sales: a list of prop-
erties for which a tax lien or tax liens has or have been sold, includ-
ing identification of the particular tax lien or tax liens sold; the
proceeds received from the sale or sales of tax liens; identification of
the purchaser of and servicer for the tax lien or tax liens sold; a
report of servicer activities during the immediately preceding year; the
redemption rate for tax liens that have been sold; the delinquency rate
for real property taxes for the immediately preceding year; and any
other information pertinent to the sale of tax liens that may be
requested by the council and which is not made confidential pursuant to
section 11-208.1 of this code. Upon request by the council, information
provided in such report shall be arranged by community board. In addi-
tion to such report, the commissioner of finance shall from time to time
provide any other information pertinent to the sale of tax liens that
may be requested by the council and which is not made confidential
pursuant to section 11-208.1 of the code, including updated information
regarding the sale or sales of tax liens pursuant to this chapter. In
addition to such report, no later than August thirty-first, two thousand
twenty, the commissioner shall provide to the council a report listing
all properties on which liens have been sold during the period from
January first, two thousand fifteen through December thirty-first, two
thousand nineteen. The report shall indicate, based on records in the
office of the register, whether a transfer of or mortgage recorded on
any of such properties has occurred during such period after the sale of
any tax lien sold during such period.
CHAPTER 4
TAX LIEN FORECLOSURE BY ACTION IN REM
A. 10030 307
§ 11-401 Definitions. Whenever used in this chapter, the following
terms shall mean:
1. "Tax lien." The lien arising as a result of the nonpayment of
taxes, assessments, sewer rents, sewer surcharges, water rents, any
other charges that are made a lien subject to the provisions of this
chapter or chapter three of this title, interest and penalties thereon,
and the right of the city to receive such amounts.
2. "Court." The supreme court.
3. "Class." Any class of real property defined in subdivision one of
section eighteen hundred two of the real property tax law, and any
subclassification of class two real property where such subclassifica-
tion is established by rule of the commissioner of finance promulgated
pursuant to this subdivision.
4. "Distressed property." Any parcel of class one or class two real
property that is subject to a tax lien or liens that result from an
environmental control board judgment against the owner of such parcel
for a building code violation with a lien or liens to value ratio, as
determined by the commissioner of finance, equal to or greater than
twenty-five percent or any parcel of class one or class two real proper-
ty that is subject to a tax lien or liens with a lien or liens to value
ratio, as determined by the commissioner of finance, equal to or greater
than fifteen percent and that meets one of the following two criteria:
i. such parcel has an average of five or more hazardous or immediately
hazardous violations of record of the housing maintenance code per
dwelling unit; or
ii. such parcel is subject to a lien or liens for any expenses
incurred by the department of housing preservation and development for
the repair or the elimination of any dangerous or unlawful conditions
therein, pursuant to section 27-2144 of this code, in an amount equal to
or greater than one thousand dollars.
§ 11-401.1 Procedures for distressed property. a. The commissioner of
finance shall, not less than sixty days preceding the date of the sale
of a tax lien or tax liens, submit to the commissioner of housing pres-
ervation and development a description by block and lot, or by such
other identification as the commissioner of finance may deem appropri-
ate, of any parcel of class one or class two real property on which
there is a tax lien that may be foreclosed by the city. The commissioner
of housing preservation and development shall determine, and direct the
commissioner of finance, not less than ten days preceding the date of
the sale of a tax lien or tax liens, whether any such parcel is a
distressed property as defined in subdivision four of section 11-401 of
this chapter. Any tax lien on a parcel so determined to be a distressed
property shall not be included in such sale. In connection with a subse-
quent sale of a tax lien or tax liens, the commissioner of finance may,
not less than sixty days preceding the date of the sale, resubmit to the
commissioner of housing preservation and development a description by
block and lot, or by such other identification as the commissioner of
finance may deem appropriate, of any parcel of class one or class two
real property that was previously determined to be a distressed property
pursuant to this paragraph and on which there is a tax lien that may be
included in such sale. The commissioner of housing preservation and
development shall determine, and direct the commissioner of finance, not
less than ten days preceding the date of the sale, whether such parcel
remains a distressed property. If the commissioner of housing preserva-
tion and development determines that the parcel is not a distressed
property, then the tax lien on the parcel may be included in the sale.
A. 10030 308
b. The commissioner of housing preservation and development may peri-
odically review whether a parcel of class one or class two real property
that is subject to subdivision c of this section or subdivision j of
section 11-412.1 of this chapter remains a distressed property. If the
commissioner determines that the parcel is not a distressed property as
defined in subdivision four of section 11-401 of this chapter, then the
parcel shall not be subject to such subdivisions.
c. Any parcel so determined to be a distressed property shall be
subject to an in rem foreclosure action, or in the case where the
commissioner of finance does not commence such action the commissioner
of housing preservation and development shall evaluate such parcel and
take such action as he or she deems appropriate under the programs,
existing at the time of such evaluation, that are designed to encourage
the rehabilitation and preservation of existing housing, and shall moni-
tor or cause to be monitored the status of the property. The commission-
er of housing preservation and development, in his or her discretion,
shall cause an inspection to be conducted on any parcel so determined to
be a distressed property. In addition, the commissioner of housing pres-
ervation and development shall submit to the council a list of all
parcels so determined to be a distressed property within thirty days
from the date such parcels are identified as a distressed property.
§ 11-402 Applicability of procedure of foreclosure in rem. a. The
provisions of this chapter shall be applicable only to tax liens owned
by the city.
b. The provisions of this chapter shall not affect any existing remedy
or procedure for the enforcement or foreclosure of tax liens provided
for in this code or any other law, but the remedy provided herein for
foreclosure by action in rem shall be in addition to any other remedies
or procedures provided by any general, special or local law.
c. The provisions of this chapter shall not affect pending actions or
proceedings, provided, however, that any pending action or proceeding
for the enforcement or foreclosure of tax liens may be discontinued, and
a new action may be instituted pursuant to the provisions of this chap-
ter, in respect to any such tax lien.
§ 11-402.1 Inapplicability of article eleven of the real property tax
law to the enforcement of the collection of delinquent taxes. In accord-
ance with section six of chapter six hundred two of the laws of nineteen
hundred ninety-three and subdivision two of section eleven hundred four
of the real property tax law, it is hereby provided that the collection
of delinquent taxes shall continue to be enforced pursuant to chapters
three and four of title eleven of this code and other related provisions
of the charter and this code as such chapters three and four and such
related provisions may from time to time be amended and that article
eleven of the real property tax law shall not be applicable to the city.
§ 11-403 Jurisdiction. The supreme court shall have jurisdiction of
actions authorized by this chapter.
§ 11-404 Foreclosure by action in rem. a. Whenever it shall appear
that a tax lien or tax liens has or have been due and unpaid for a peri-
od of at least one year from the date on which the tax, assessment or
other legal charge represented thereby became a lien, such tax lien or
tax liens, except as provided in subdivision b of this section or other-
wise provided by this chapter, may be summarily foreclosed in the manner
provided in this chapter, notwithstanding the provisions of any general,
special or local law and notwithstanding any omission to hold a sale of
a tax lien or tax liens prior to such foreclosure. A bill of arrears or
any other instrument evidencing such tax lien or tax liens shall be
A. 10030 309
evidence of the fact that the tax lien or tax liens represented thereby
has not or have not been paid to the city or sold by it.
b. A tax lien on any class one property or any class two property that
is a residential condominium or residential cooperative, as such classes
of property are defined in subdivision one of section eighteen hundred
two of the real property tax law, and on any multiple dwelling owned by
a company organized pursuant to article eleven of the private housing
finance law with the consent and approval of the department of housing
preservation and development, shall not be foreclosed in the manner
provided in this chapter until such tax lien has been due and unpaid for
a period of at least three years from the date on which the tax, assess-
ment or other legal charge represented thereby became a lien.
§ 11-405 Preparation and filing of lists of delinquent taxes. a. The
commissioner of finance from time to time shall prepare a list, to be
known as a "list of delinquent taxes", of all parcels, or all parcels
within a particular class or classes, that are within a particular
section of a tax map or portion of a section of a tax map of the city
and on which there are tax liens subject to foreclosure pursuant to this
chapter, provided, however, that no such portion shall be smaller than a
block, as defined in subdivision d of section 11-204 of subchapter one
of chapter two of this title. Every such list shall bear a caption
containing the in rem action number of the city's tax foreclosure
proceeding, the section of a tax map or portion of a section of a tax
map, and where the action covers less than all parcels in a section of a
tax map or portion of a section of a tax map, the particular class or
classes, and shall contain a statement of the rate or rates at which
interest and penalties will be computed for the various liens it
includes.
b. Every such list shall set forth the parcels it includes separately
and number them serially. For each parcel it shall contain (1) a brief
description sufficient to identify the parcel, including section, block
and lot numbers, and the street and street number, if any, or in the
absence of such information the parcel or tract identification number
shown on a tax map or on a map filed in the county clerk's or register's
office and (2) a statement of the amounts and dates of all unpaid tax
liens which are subject to foreclosure under this chapter and of those
which have accrued thereafter.
c. (1) The commissioner of finance may exclude or thereafter remove
from such list any parcels (i) as to which questions the commissioner
deems meritorious have been raised regarding the validity of the liens,
(ii) as to which all the taxes and other charges which rendered said
parcels eligible for inclusion in said list have been paid, or (iii)
which are owned by an entity other than a company organized pursuant to
article eleven of the private housing finance law with the consent and
approval of the department of housing preservation and development and
which are not owner-occupied residential buildings of not more than five
residential units and as to which an agreement has been duly made,
executed and filed with such commissioner for the payment of the delin-
quent taxes, assessments or other legal charges, interest and penalties
in installments. The first installment shall be paid upon the filing of
the installment agreement with the commissioner and shall be in an
amount of not less than fifteen percent of such delinquent taxes,
assessments or other legal charges, interest and penalties. The remain-
ing installments, which shall be twice the number of unpaid quarters of
real estate taxes or the equivalent thereof but which shall in no event
exceed thirty-two in number, shall be payable quarterly on the first day
A. 10030 310
of July, October, January and April. For the purposes of calculating the
number of such remaining installments unpaid real estate taxes which
are, on and after July first, nineteen hundred eighty-two, due and paya-
ble on an other than quarterly basis shall be deemed to be payable on a
quarterly basis.
(2) The commissioner of finance may also exclude or thereafter remove
from such list any parcels which are owned by a company organized pursu-
ant to article eleven of the private housing finance law with the
consent and approval of the department of housing preservation and
development, and (i) as to which an agreement has been duly made,
executed and filed with said commissioner for the payment of the delin-
quent taxes, assessments or other legal charges incurred prior to the
ownership of said parcel by said article eleven company, and the inter-
est and penalties thereon, in installments. The first installment there-
of shall be paid upon the filing of the installment agreement with the
commissioner and shall be in an amount of not less than ten percent of
such delinquent taxes, assessments or other legal charges and the inter-
est and penalty thereon. The remaining installments, which shall be
three times the number of unpaid quarters of real estate taxes or the
equivalent thereof but which shall in no event exceed forty-eight in
number shall be payable quarterly on the first days of July, October,
January and April. For the purposes of calculating the number of such
remaining installments unpaid real estate taxes which are, on and after
July first, nineteen hundred eighty-two due and payable on an other than
quarterly basis shall be deemed to be payable on a quarterly basis; and
(ii) as to which an agreement has been duly made, executed and filed
with said commissioner, for the payment of the delinquent taxes, assess-
ments or other legal charges incurred after the ownership of said parcel
by said article eleven company on the same terms as are provided in
paragraph one of this subdivision.
(3) The commissioner of finance may also exclude or thereafter remove
from such list any parcels which are owner-occupied residential build-
ings of not more than five residential units as to which an agreement
has been duly made, executed and filed with said commissioner for the
payment of the delinquent taxes, assessments, or other legal charges and
the interest and penalties thereon, in installments. The first install-
ment thereof shall be paid upon the filing of the installment agreement
with the commissioner and shall be in an amount not less than ten
percent of such delinquent taxes, assessment or other legal charges and
the interest and penalty thereon. The remaining installments, which
shall be three times the number of unpaid quarters of real estate taxes
or the equivalent thereof but which shall in no event exceed forty-eight
in number, shall be payable quarterly on the first days of July, Octo-
ber, January and April. For purposes of calculating the number of such
remaining installments unpaid real estate taxes which are, on and after
July first, nineteen hundred eighty-two, due and payable on an other
than quarterly basis shall be deemed to be payable on a quarterly basis.
(4) Notwithstanding paragraph one, two or three of this subdivision,
with respect to installment agreements duly made, executed and filed on
or after the date on which this paragraph takes effect, the commissioner
of finance may also exclude or thereafter remove from such list any
parcel that is (i) (A) a residential building containing not more than
five residential units, (B) a residential condominium unit, (C) a resi-
dential building held in a cooperative form of ownership, or (D) owned
by a company organized pursuant to article eleven of the state private
housing finance law with the consent and approval of the department of
A. 10030 311
housing preservation and development, and (ii) as to which an agreement
has been duly made, executed and filed with such commissioner for the
payment of the delinquent taxes, assessments or other legal charges, and
the interest and penalties thereon, in installments. The first install-
ment thereof shall be paid upon the filing of the installment agreement
with the commissioner and shall be in an amount equal to not less than
ten percent of the total amount of such delinquent taxes, assessments or
other legal charges and the interest and penalties thereon. The remain-
ing installments, which shall be three times the number of unpaid quar-
ters of real estate taxes or the equivalent thereof, but which shall in
no event exceed thirty-two in number, shall be payable quarterly on the
first days of July, October, January and April. For the purposes of
calculating the number of such remaining installments, unpaid real
estate taxes that are due and payable on other than a quarterly basis
shall be deemed to be payable on a quarterly basis.
(5) Notwithstanding paragraph one, two or three of this subdivision,
with respect to installment agreements duly made, executed and filed on
or after the date on which this paragraph takes effect, the commissioner
of finance may also exclude or thereafter remove from such list any
parcel of class one or class two real property, other than a parcel
described in paragraph four of this subdivision, as to which an agree-
ment has been duly made, executed and filed with such commissioner for
the payment of the delinquent taxes, assessments or other legal charges,
and the interest and penalties thereon, in installments. The first
installment thereof shall be paid upon the filing of the installment
agreement with the commissioner and shall be in an amount equal to not
less than fifteen percent of the total amount of such delinquent taxes,
assessments or other legal charges and the interest and penalties there-
on. The remaining installments, which shall be twice the number of
unpaid quarters of real estate taxes or the equivalent thereof, but
which shall in no event exceed thirty-two in number, shall be payable
quarterly on the first days of July, October, January and April. For the
purposes of calculating the number of such remaining installments,
unpaid real estate taxes that are due and payable on other than a quar-
terly basis shall be deemed to be payable on a quarterly basis.
(6) Notwithstanding paragraph one, two or three of this subdivision,
with respect to installment agreements duly made, executed and filed on
or after the date on which this paragraph takes effect, the commissioner
of finance may also exclude or thereafter remove from such list any
parcel of class three or class four real property as to which an agree-
ment has been duly made, executed and filed with such commissioner for
the payment of the delinquent taxes, assessments or other legal charges,
and the interest and penalties thereon, in installments. The first
installment thereof shall be paid upon the filing of the installment
agreement with the commissioner and shall be in an amount equal to not
less than fifteen percent of the total amount of such delinquent taxes,
assessments or other legal charges and the interest and penalties there-
on. The remaining installments, which shall be twice the number of
unpaid quarters of real estate taxes or the equivalent thereof, but
which shall in no event exceed twenty in number, shall be payable quar-
terly on the first days of July, October, January and April. For the
purposes of calculating the number of such remaining installments,
unpaid real estate taxes that are due and payable on other than a quar-
terly basis shall be deemed to be payable on a quarterly basis.
(7) A parcel for which any such installment agreement or agreements
have been filed with the commissioner shall be excluded or removed from
A. 10030 312
the list of delinquent taxes before the commencement of the in rem
action based upon such list only if the amounts paid pursuant to such
agreement exceed the amount required to pay all taxes and charges which
render said parcel eligible for inclusion in the in rem action and there
has been no default in such agreement prior to the commencement of said
action as to either quarterly installments or current taxes, assessments
or other legal charges.
(8) As a condition to entering into any agreement under this section
or section 11-409 of this chapter, the commissioner shall have received
from the applicant, an affidavit stating that each tenant located on the
parcel has been notified by certified mail that an application for an
installment agreement will be made and that a copy of a standard agree-
ment form has been included with such notification. Any false statement
in such affidavit shall not be grounds to cancel the agreement or affect
its validity in any way.
d. Two duplicate originals thereof, verified by the commissioner of
finance or a subordinate designated by the commissioner, shall be filed
in the office of the clerk of the county in which the parcels listed
therein are situated. Such filing shall constitute and have the same
force and effect as the filing and recording in such office of an indi-
vidual and separate notice of pendency of action and as the filing in
the supreme court in such county of an individual and separate complaint
by the city as to each parcel described in said list, to enforce the
payment of the delinquent taxes, assessments or other lawful charges
which have accumulated and become liens against such parcels.
e. Each county clerk with whom such a list of delinquent taxes is
filed shall, on the date of said filing, place and thereafter maintain
one duplicate original copy thereof, as separately and permanently bound
by the commissioner of finance, adjacent to and together with the block
index of notices of pendency of action and each county clerk shall, on
the date of said filing or as soon thereafter as with due diligence is
practicable, docket the parcels contained in the list of delinquent
taxes in said block index of notices of pendency of action, which shall
constitute due filing, recording and indexing of the separate notices
constituting said list of delinquent taxes in lieu of any other require-
ment under rule sixty-five hundred eleven of the civil practice law and
rules or otherwise.
f. The commissioner of finance shall file a copy of each list of
delinquent taxes, certified as such copy by him or her or a subordinate
designated by the commissioner, in the office of the corporation coun-
sel.
g. The validity of any proceeding hereunder shall not be affected by
any omission or error of the commissioner of finance in including or
excluding parcels from any such list or in the designation of a street
or street number or by any other similar omission or error.
§ 11-406 Public notice of foreclosure. a. Upon the filing of a list of
delinquent taxes in the office of the county clerk, the commissioner of
finance forthwith shall cause a notice of foreclosure to be published at
least once a week for six successive weeks in the City Record and,
subject to section ninety-one of the judiciary law, in two newspapers,
one of which may be a law journal, to be designated by the commissioner
of finance, which are published in and are circulated throughout the
county in which the affected property is located. If there are no news-
papers published in such county, the commissioner of finance may desig-
nate newspapers published in the city of Staten Island which are circu-
lated throughout the affected county.
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b. Such notice shall clearly indicate that it is a notice of foreclo-
sure of tax liens; the section of a tax map or portion of a section of a
tax map in which the properties subject to foreclosure are located and
where the area affected by the action includes less than all parcels in
a section of a tax map or portion of a section of a tax map, the partic-
ular class or classes contained therein, and by a general description
which need not contain measurements and direction; where and when the
list of delinquent taxes was filed; the general nature of the informa-
tion contained in the list; that the filing of the list constitutes
commencement of a foreclosure action by the city in the supreme court
for the particular county and a notice of pendency of action against
each parcel listed; that such action is against the property only and no
personal judgment will be entered; that the list will be available for
inspection at the city collector's central office and at the borough
office of the city collector in which said property is located until a
specified date at least ten weeks after the date of first publication;
that until such date a parcel may be redeemed by paying all taxes and
charges contained in said list of delinquent taxes together with inter-
est and penalties thereon; that during said period of redemption and for
an additional period of twenty days after said last date for redemption
any person having any interest in or lien upon a parcel on the list may
file with the appropriate county clerk and serve upon the corporation
counsel a verified answer setting forth in detail the full name of said
answering party, the nature and amount of his or her interest or lien
and any legal defense against foreclosure; and that in the absence of
redemption or answer a judgment of foreclosure may be taken by default.
c. On or before the date of the first publication of such notice, the
commissioner of finance shall cause a copy of the notice to be mailed to
all owners, mortgagees, lienors or encumbrancers, who may be entitled to
receive such notice by virtue of any owner's registration or in rem card
filed in the office of the city collector pursuant to section 11-416 or
11-417 of this chapter. If such owner's registration or in rem cards
have not been filed in the office of the city collector then said notice
shall be mailed to the name and address, if any, appearing in the latest
annual record of assessed valuations. The commissioner of finance shall
cause to be inserted with such notice a statement substantially in the
following form:
"To the party to whom the enclosed notice is addressed: You are the
presumptive owner or lienor of one or more of the parcels mentioned and
described in the list referred to in the attached notice. Unless the
taxes and assessments and all other legal charges are paid, or an answer
is interposed; or an arrangement is made for payment of such taxes and
assessments and all other legal charges in installments, as provided by
statute, the ownership of said property will in due course pass to the
city of Staten Island as provided by the administrative code of the city
of Staten Island."
The failure of the commissioner of finance to mail such notice shall
not affect the validity of any proceeding brought pursuant to this chap-
ter as to any parcel other than the parcel with respect to which notice
was not mailed.
d. The commissioner of finance shall cause a copy of such notice to be
posted in the office of the commissioner of finance, in the county
courthouse of the county in which the property subject to such tax lien
is situated and at three other conspicuous places in the city in which
the affected properties are located.
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§ 11-407 Redemption. a. After the filing of a list of delinquent taxes
and until a date at least ten weeks after the first publication of the
public notice of foreclosure, as determined by the commissioner of
finance and specified in the said notice, a person claiming to have an
interest in any parcel in said list may redeem it by paying all taxes
and charges contained in said list of delinquent taxes together with
interest and penalties thereon.
b. Upon such redemption the commissioner of finance shall deliver to
the corporation counsel a certificate of redemption. The corporation
counsel shall file such certificate with the clerk of the county in
which said list was filed. The filing of such certificate shall consti-
tute and be deemed a discontinuance of the in rem action as to the
affected parcel, and the county clerk shall thereupon note such redemp-
tion and discontinuance in the copy of the list of delinquent taxes
maintained by him or her adjacent to the county clerk's block index of
notices of pendency of action and shall cancel and discharge any
notations of the filing of said list of delinquent taxes as to said
parcel that may appear in any other books, records, indices and dockets
maintained in said clerk's office. The commissioner of finance shall
also deliver a duplicate original certificate of redemption to the
person who has redeemed.
c. When the time to redeem in an in rem tax foreclosure action has
expired, any person claiming to have an interest in a parcel included in
said action shall have the right to make a late redemption payment to
the commissioner of finance. Such late redemption payment shall consist
of all taxes and charges owing on said parcel, the lawful interest ther-
eon to the date of payment and a penalty of five percent of said payment
of taxes, charges and interest, which penalty may not exceed one thou-
sand dollars as to each parcel on which a late redemption payment is
being made. Such late redemption payment shall be made in cash or by
certified or bank check and shall be accepted by the commissioner of
finance at any time after the last day to redeem up to the date on which
the commissioner is advised by the corporation counsel that the prepara-
tion of the judgment of foreclosure in the in rem action has been
commenced. Upon receipt of such late redemption payment, the commission-
er of finance shall issue a certificate of withdrawal pursuant to the
provisions of section 11-413 of this chapter.
§ 11-408 Filing of affidavits. All affidavits of filing, publication,
posting, mailing or other acts required by this chapter shall be made by
the person or persons performing such acts and shall be filed in the
office of the county clerk of the county in which the property subject
to such tax lien is situated and shall together with all other documents
required by this chapter to be filed in the office of such county clerk,
constitute and become a part of the judgment roll in such foreclosure
action.
§ 11-409 Severance and trial of issues where answer is interposed;
installment agreements authorized after action commenced. a. If a duly
verified answer is served upon the corporation counsel not later than
twenty days after the last date for redemption, the answering defendant
shall have the right to a severance of the action, as to any parcel in
which the defendant has pleaded an interest, upon written demand there-
for filed with or made a part of his or her answer.
b. When such answer is interposed, the court shall summarily hear and
determine the issues raised by the complaint and answer in the same
manner as it hears and determines other actions, except as herein other-
wise provided. Proof that the taxes which made said property subject to
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foreclosure hereunder together with interest and penalties thereon, were
paid before filing of the list of delinquent taxes or that the property
was not subject to tax shall constitute a complete defense.
c. No counterclaim may be asserted in an answer interposed in an
action brought pursuant to this chapter. Where a counterclaim is
asserted in an in rem answer the city may disregard that portion of the
answer and shall suffer no legal penalty or impediment in the prose-
cution of its in rem action for its failure to reply or respond thereto.
Where an answer contains only a counterclaim and no other defenses the
city may proceed to judgment of foreclosure against the property
affected without the need for moving against the answer.
d. When a verified answer alleges a substantial equity over the city's
lien for taxes, the defendant may demand additional time in which to pay
the taxes and interest or to have the property sold with all taxes and
interest to be paid out of the proceeds of such sale. Upon such demand a
defendant shall have the right to an extension of time for such purpose
not in excess of six months from the last day to interpose an answer.
Where a mortgagee or lienor who has interposed such answer commences a
proceeding to foreclose his or her mortgage or lien and it appears that
with due diligence such proceeding cannot be concluded in time to allow
the payment of taxes within the aforesaid six month period, the court
may, on application before the end of said six month period, authorize
an additional period during which such proceeding may be concluded and
the taxes, together with interest and penalties, paid.
e. Where an answer of the type described in subdivision d of this
section is interposed and taxes are paid within the period set forth in
such subdivision, the commissioner of finance shall issue a certificate
of withdrawal as to the property on which such payment has been made
pursuant to the provisions of section 11-413 of this chapter. When taxes
are not paid within the period set forth in subdivision d of this
section, it shall be deemed that there was no equity over the city's tax
liens and the answer shall be deemed to be without merit. The city in
that event may proceed to judgment of foreclosure against such property
without moving against the answer.
f. All answers interposed in an action hereunder and all affidavits
and other papers pertaining to any litigation involving such answers or
to any proceeding brought pursuant to this chapter involving less than
an entire action shall bear a caption containing the in rem action
number of the city's tax foreclosure proceeding, the section of a tax
map or portion of a section of a tax map affected, and if the action
covers less than all parcels in the section of a tax map or portion of a
section of a tax map, the particular class or classes, and the serial,
section, block and lot numbers of the parcel or parcels in issue.
g. The corporation counsel, when submitting an in rem judgment roll
pursuant to the provisions of this chapter, may request a severance as
to any parcel on which an in rem answer or litigation is pending, or as
to which, before the preparation of said in rem judgment roll is
commenced, an agreement was duly made, executed and filed with the
commissioner of finance for the payment of the delinquent taxes, assess-
ments or other legal charges and interest and penalties in installments
as provided in subdivision c of section 11-405 of this chapter and there
has been no default in such agreement as to either quarterly install-
ments or current taxes, assessments or other legal charges. Where such
an agreement is entered into subsequent to the last date for redemption
specified in subdivision a of section 11-407 of this chapter, there
shall be paid to the commissioner of finance at the time the aforesaid
A. 10030 316
agreement is executed an amount equal to the penalty which would have
been payable under subdivision c of section 11-407 of this chapter had
the person executing the agreement made a late redemption payment. Such
amount shall be in addition to any installment payments required to be
made under the agreement and shall not be credited against any such
installment payments. Where a default occurs in such agreement as to
either quarterly installments or current taxes, assessments or other
legal charges, all payments made under the agreement shall be forfeited
and the city shall be entitled to acquire the parcel as to which the
default occurred. Where such default occurs before the submission of the
judgment roll, the parcels as to which such default occurs shall be
included in said judgment roll among the parcels to be acquired by the
city. Where such default has occurred as to a parcel severed pursuant to
this subdivision, the corporation counsel shall cause to be entered a
supplemental judgment of foreclosure as to such parcel immediately on
notification by the commissioner of finance of such default. Where such
installment agreement is paid in full the commissioner of finance shall
discontinue the in rem action from which said parcel was severed by
issuing a certificate of withdrawal as to said parcel pursuant to the
provisions of section 11-413 of this chapter.
h. A party who has interposed an answer as to any parcel included in
an in rem tax foreclosure action, or any other party interested in such
parcel, shall have the right, at any time prior to the final disposition
of a motion to strike said answer, to pay all taxes, assessments and
other legal charges and interest owing on said parcel. An answering
party who makes such payment shall not be required to pay any penalty.
Where such payment is made by other than an answering party after the
expiration of the period of redemption, there shall be paid to the
commissioner of finance an additional amount equal to the penalty paya-
ble under subdivision c of section 11-407 of this chapter. Where all
delinquent taxes, assessments and other legal charges together with
lawful interest thereon and penalties, where required, are paid, the
commissioner of finance shall issue a certificate of withdrawal as to
said parcel pursuant to the provisions of section 11-413 of this chap-
ter. Said parties may also pay such taxes, assessments and other legal
charges and interest by an installment agreement. Where such agreement
is requested before the preparation of the aforesaid in rem judgment
roll is commenced, the terms of said agreement shall be consistent with
the provisions of subdivision g or i of this section, whichever is
applicable. Where such agreement is requested after judgment of foreclo-
sure has been entered in the in rem action in which the aforesaid answer
was interposed, said agreement shall require a first installment of
fifty percent of all taxes, assessments and other legal charges and
interest owing on said parcel, a penalty of five percent of all such
taxes, assessments and other legal charges and interest, which penalty
may not exceed one thousand dollars, and the payment of the balance of
such taxes, assessments and other legal charges and interest in four
equal quarterly installments together with all current taxes, assess-
ments and other legal charges that accrue during such period. The
request of an answering party for an installment agreement shall consti-
tute a withdrawal of such party's answer. An installment agreement
requested by an interested party other than the answering party shall
require the consent of said answering party which shall also constitute
a withdrawal of such party's answer. The severance provided for in this
section shall be continued during the term of all installment agreements
entered into pursuant to the provisions of this subdivision. Where a
A. 10030 317
default has occurred as to a parcel severed pursuant to this subdivi-
sion, the corporation counsel shall cause to be entered a supplemental
judgment of foreclosure as to such parcel immediately on notification by
the commissioner of finance of such default. Where such installment
agreement is paid in full, the commissioner of finance shall discontinue
the in rem action from which said parcel was severed by issuing a
certificate of withdrawal as to said parcel pursuant to the provisions
of section 11-413 of this chapter.
i. (1) Notwithstanding subdivision g of this section, this subdivision
shall apply with respect to installment agreements made, executed and
filed with the commissioner of finance on or after the date on which
this subdivision takes effect. An installment agreement pursuant to this
subdivision may be made, executed and filed with such commissioner
during the period beginning on the date on which an action is commenced
as provided in subdivision d of section 11-405 of this chapter with
respect to the parcel that is the subject of such agreement and ending
on the date on which such commissioner is advised by the corporation
counsel that the preparation of the judgment of foreclosure in such in
rem action has been commenced. Notwithstanding anything to the contrary,
and except to the extent provided in paragraph two of this subdivision,
the provisions of paragraphs one through six of subdivision c of section
11-405 of this chapter shall not apply to any installment agreement
requested on or after the date on which this subdivision takes effect
and on or after the date on which an action is commenced as provided in
subdivision d of such section 11-405 with respect to the parcel that is
the subject of such requested agreement.
(2) An agreement entered into pursuant to this subdivision shall
provide for the payment in installments of the delinquent taxes, assess-
ments and other legal charges, and the interest and penalties thereon,
due and owing as of the date on which such agreement is requested.
Unless an eligible owner or other interested person requests an agree-
ment pursuant to the provisions of paragraph three of this subdivision,
the terms of such agreement with respect to a parcel shall be the same
as the terms that would be applicable to such parcel under paragraph
four, five or six, as the case may be, of subdivision c of section
11-405 of this chapter, except that, for purposes of the agreement
pursuant to this paragraph, the amount of the first installment shall be
equal to: (i) fifteen percent of the total amount due in the case of a
parcel described in paragraph four of subdivision c of section 11-405 of
this chapter; (ii) twenty percent of the total amount due in the case of
a parcel described in paragraph five of subdivision c of section 11-405
of this chapter; and (iii) twenty-five percent of the total amount due
in the case of a parcel described in paragraph six of subdivision c of
section 11-405 of this chapter.
(3) Instead of an agreement pursuant to paragraph two of this subdivi-
sion, an eligible owner or other interested party may request an agree-
ment pursuant to the following provisions:
(i) With respect to a parcel that is owned by a company organized
pursuant to article eleven of the state private housing finance law with
the consent and approval of the department of housing preservation and
development, such agreement shall provide for the payment in install-
ments of the delinquent taxes, assessments and other legal charges, and
the interest and penalties thereon, due and owing as of the date on
which such agreement is requested. The first installment thereof shall
be paid upon the filing of the installment agreement with the commis-
sioner of finance and shall be in an amount at least equal to, at the
A. 10030 318
applicant's election, either thirty-five percent or fifty percent of the
total amount of such delinquent taxes, assessments or other legal charg-
es and the interest and penalties thereon. The remaining installments,
which shall be three times the number of unpaid quarters of real estate
taxes or the equivalent thereof, but which shall in no event exceed
thirty-two in number, shall be payable quarterly on the first days of
July, October, January and April, together with interest at the rate or
rates determined as provided in subparagraph (iv) of this paragraph. For
the purposes of calculating the number of such remaining installments,
unpaid real estate taxes that are due and payable on other than a quar-
terly basis shall be deemed to be payable on a quarterly basis.
(ii) With respect to a parcel, other than a parcel described in
subparagraph (i) of this paragraph, that is a residential building
containing not more than five residential units, a residential condomin-
ium unit or a residential building held in a cooperative form of owner-
ship, such agreement shall provide for the payment in installments of
the delinquent taxes, assessments and other legal charges, and the
interest and penalties thereon, due and owing as of the date on which
such agreement is requested. The first installment thereof shall be paid
upon the filing of the installment agreement with the commissioner of
finance and shall be in an amount at least equal to, at the applicant's
election, either twenty-five percent or fifty percent of the total
amount of such delinquent taxes, assessments or other legal charges and
the interest and penalties thereon. The remaining installments, which
shall be three times the number of unpaid quarters of real estate taxes
or the equivalent thereof, but which shall in no event exceed twenty in
number, shall be payable quarterly on the first days of July, October,
January and April together with interest at the rate or rates determined
as provided in subparagraph (iv) of this paragraph. For the purposes of
calculating the number of such remaining installments, unpaid real
estate taxes that are due and payable on other than a quarterly basis
shall be deemed to be payable on a quarterly basis.
(iii) With respect to any parcel of class one or class two real prop-
erty, other than a parcel described in subparagraph (i) or (ii) of this
paragraph, such agreement shall provide for the payment in installments
of the delinquent taxes, assessments and other legal charges, and the
interest and penalties thereon, due and owing as of the date on which
such agreement is requested. The first installment thereof shall be paid
upon the filing of the installment agreement with the commissioner of
finance and shall be in an amount at least equal to, at the applicant's
election, either thirty-five percent or fifty percent of the total
amount of such delinquent taxes, assessments or other legal charges and
the interest and penalties thereon. The remaining installments, which
shall be twice the number of unpaid quarters of real estate taxes or the
equivalent thereof, but which shall in no event exceed twenty in number,
shall be payable quarterly on the first days of July, October, January
and April, together with interest at the rate or rates determined as
provided in subparagraph (iv) of this paragraph. For the purposes of
calculating the number of such remaining installments, unpaid real
estate taxes that are due and payable on other than a quarterly basis
shall be deemed to be payable on a quarterly basis.
(iv) (A) Notwithstanding any higher rate of interest prescribed pursu-
ant to applicable law, and unless a lower rate of interest is applicable
to a delinquent amount owing on a parcel that is the subject of an
agreement pursuant to this paragraph, the interest payable together with
the remaining installments due under such agreement shall be:
A. 10030 319
(I) with respect to an agreement for which a twenty-five percent or
thirty-five percent down payment was made, calculated at a rate equal to
the sum of (a) the rate prescribed for the applicable period pursuant to
paragraph (i) of subdivision e of section 11-224.1 of this title and (b)
one-half of the difference between such rate and the rate prescribed for
such period pursuant to paragraph (ii) of subdivision e of section
11-224.1 of this title; or
(II) with respect to an agreement for which a fifty percent down
payment was made, calculated at a rate equal to the rate prescribed for
the applicable period pursuant to paragraph (i) of subdivision e of
section 11-224.1 of this title.
(B) If a default occurs in any agreement executed pursuant to this
paragraph as to either quarterly installments or current taxes, assess-
ments or other legal charges, the rates of interest determined under
this subparagraph shall thereupon cease to be applicable and the commis-
sioner of finance shall thereafter charge, collect and receive interest
in the manner and at the rates otherwise prescribed pursuant to law.
(4) The corporation counsel, when submitting an in rem judgment roll
pursuant to the provisions of this chapter, may request a severance as
to any parcel as to which, before the preparation of said in rem judg-
ment roll is commenced, an agreement was duly made, executed and filed
with the commissioner of finance for the payment of all delinquent
taxes, assessments and other legal charges and interest and penalties in
installments as provided in this subdivision, and there has been no
default in such agreement as to either quarterly installments or current
taxes, assessments or other legal charges. Where such an agreement is
entered into subsequent to the last date for redemption specified in
subdivision a of section 11-407 of this chapter, there shall be paid to
the commissioner of finance at the time such agreements are executed an
amount equal to the penalty that would have been payable under subdivi-
sion c of section 11-407 of this chapter had the person executing the
agreement made a late redemption payment. Such amount shall be in addi-
tion to any installment payments required to be made under the agreement
and shall not be credited against any such installment payments. Where a
default occurs in such agreement as to either quarterly installments or
current taxes, assessments or other legal charges, all payments made
under the agreement shall be forfeited and the city shall be entitled to
obtain a judgment hereunder as to the parcel as to which the default
occurred. Where such default occurred before the submission of the judg-
ment roll, the parcels as to which such default occurs shall be included
in said judgment roll amount the parcels to be acquired by the city or
by a third party. Where such default has occurred as to a parcel severed
pursuant to this subdivision, the corporation counsel shall cause to be
entered a supplemental judgment of foreclosure as to such parcel imme-
diately on notification by the commissioner of finance of such default.
Where such installment agreement is paid in full, the commissioner of
finance shall discontinue the in rem action from which such parcel was
severed by issuing a certificate of withdrawal as to such parcel pursu-
ant to the provisions of section 11-413 of this chapter.
§ 11-410 Preference over other actions. a. Any action brought pursuant
to this chapter shall be given preference over all other causes and
actions.
b. Actions brought pursuant to this chapter shall take precedence over
any proceeding brought to foreclose a mortgage or other lien involving
the same property. A parcel included in a list of delinquent taxes
which is sold in a mortgage foreclosure sale held after said list is
A. 10030 320
filed may not be sold subject to taxes even if judgment has not yet been
entered in the tax foreclosure action. All unpaid taxes and interest and
penalties thereon must be paid, in full or by installment agreement
pursuant to the provisions of this chapter, out of the proceeds of such
sale regardless of whether the mortgage foreclosure lis pendens was
filed before or after the filing of the tax foreclosure action, regard-
less of whether any party to the mortgage foreclosure proceeding has
interposed an answer in the tax foreclosure action and regardless of any
terms to the contrary in the judgment in the mortgage foreclosure
proceeding.
§ 11-411 Presumption of validity. It shall not be necessary for the
city to plead or prove the various steps, procedures and notices for the
assessment and levy of the taxes, assessments or other lawful charges
against the parcels set forth in the list of delinquent taxes and all
such taxes, assessments or other lawful charges and the lien thereof
shall be presumed to be valid. A defendant alleging any jurisdictional
defect or invalidity in such taxes, assessments or other lawful charges
or in the foreclosure thereof must particularly specify in his or her
answer such jurisdictional defect or invalidity and must affirmatively
establish such defense. A judgment of foreclosure granted in any
proceeding brought pursuant to this chapter, which contains recitals
that any acts were done or proceedings had which were necessary to give
the court jurisdiction or power to grant such judgment of foreclosure,
shall be presumptive evidence that such acts were duly performed or
proceedings duly had, if such judgment of foreclosure shall have been
duly entered or filed in the office of the clerk of the county in which
the proceeding was pending and wherein such judgment was granted. The
provisions of this chapter shall apply to and be valid and effective
with respect to all defendants even though one or more of them be
infants, incompetents, absentees or non-residents of the state of New
York.
§ 11-412 Final judgment. a. The court shall determine upon proof and
shall make finding upon such proof whether there has been due compliance
by the city with the provisions of this chapter.
b. The court shall make a final judgment awarding to the city the
possession of any parcel described in the list of delinquent taxes not
redeemed or withdrawn as provided in this chapter and as to which no
answer is interposed as provided herein. In addition thereto, such judg-
ment shall contain a direction to the commissioner of finance to
prepare, execute and cause to be recorded a deed conveying to the city
full and complete title to such lands. Upon the execution of such deed,
the city shall be seized of an estate in fee simple absolute in such
land and all persons, including the state of New York, infants, incompe-
tents, absentees and non-residents who may have had any right, title,
interest, claim, lien or equity of redemption in or upon such lands
shall be barred and forever foreclosed of all such right, title, inter-
est, claim, lien or equity of redemption, except as otherwise provided
in section 11-424 of this chapter. The appointment and tenure of receiv-
ers, trustees or any other persons, including administrators under arti-
cle seven-A of the real property actions and proceedings law, appointed
by an order of a court to manage real property, shall terminate when
title to such property vests in the city pursuant to the provisions of
this chapter. After such termination, said receivers, trustees or admin-
istrators shall be accountable to the courts that appointed them for the
faithful performance of their fiduciary obligations during the term of
their appointment and to the city for any rents and income received by
A. 10030 321
them for any period subsequent to the date of the vesting of title in
the city.
If the city serves a tenant in possession of a dwelling unit with
notice of termination of tenancy on grounds other than non-payment of
rent, the acceptance of rent for the first forty-five days after termi-
nation of tenancy by anyone other than an employee of the department
designated by the department to receive such rent shall not be deemed or
construed as a waiver of the city's right to initiate and prosecute a
proceeding to terminate the tenancy for good cause.
c. Every deed given pursuant to the provisions of this section shall
be presumptive evidence that the action and all proceedings therein and
all proceedings prior thereto from and including the assessment of the
lands affected and all notices required by law were regular and in
accordance with all provisions of law relating thereto. After two years
from the date of the recording of such deed, the presumption shall be
conclusive, unless at the time that this subdivision takes effect the
two year period since the recording of the deed has expired or less than
six months of such period of two years remains unexpired, in which case
the presumption shall become conclusive six months after this subdivi-
sion takes effect. No action to set aside such deed may be maintained
unless the action is commenced and a notice of pendency of the action is
filed in the office of the proper county clerk prior to the time that
the presumption becomes conclusive as aforesaid.
§ 11-412.1 Special procedures relating to final judgment and release
of class one and class two real property. Notwithstanding any other
provision of law to the contrary:
a. The court shall determine upon proof and shall make a finding upon
such proof whether there has been due compliance by the city with the
applicable provisions of this chapter.
b. (1) The court shall make a final judgment authorizing the award of
possession of any parcel of class one or class two real property
described in the list of delinquent taxes not redeemed or withdrawn as
provided in this chapter and as to which no answer is interposed as
provided herein, and authorizing the commissioner of finance to prepare,
execute and cause to be recorded a deed conveying either to the city or
to a third party deemed qualified and designated by the commissioner of
housing preservation and development full and complete title to such
lands. Any such conveyance to a third party shall be for an existing
use.
(2) Such third party shall be deemed qualified and shall be designated
pursuant to such criteria as are established in rules promulgated by the
commissioner of housing preservation and development, provided, however,
that such criteria shall include but not be limited to: residential
management experience; financial ability; rehabilitation experience;
ability to work with government and community organizations; neighbor-
hood ties; and that the commissioner shall consider whether the third
party is a responsible legal tenant, not-for-profit organization or
neighborhood-based-for-profit individual or organization. The commis-
sioner shall not deem qualified any third party who has been finally
adjudicated by a court of competent jurisdiction, within seven years of
the date on which such third party would otherwise be deemed qualified,
to have violated any section of article one hundred fifty, one hundred
seventy-five, one hundred seventy-six, one hundred eighty, one hundred
eighty-five or two hundred of the penal law or any similar laws of
another jurisdiction, or who has been suspended or debarred from
contracting with the city or any agency of the city pursuant to section
A. 10030 322
335 of the charter during the period of such suspension or debarment.
The rules promulgated by the commissioner pursuant to this paragraph may
establish other bases for disqualification of a third party.
c. Following the expiration of the four-month period prescribed in
subdivision d of this section, but not more than eight months after the
date on which, pursuant to subdivision b of this section, the final
judgment authorizing the award of possession of a parcel of class one or
class two real property was entered, the commissioner of finance may
execute a deed, pursuant to subdivision b of this section, with respect
to such parcel. The owner of said parcel shall continue to have all of
the rights, liabilities, responsibilities, duties and obligations of an
owner of such parcel, including, but not limited to, maintaining such
parcel in compliance with the housing maintenance, building and fire
codes, and all other applicable laws, unless and until the commissioner
of finance has prepared and executed a deed conveying to the city or to
a third party full and complete title to such parcel. Upon the execution
of such deed, the city or the third party shall be seized of an estate
in fee simple absolute in such land and all persons, including the state
of New York, infants, incompetents, absentees and non-residents who may
have had any right, title, interest, claim, lien or equity of redemption
in or upon such lands shall be barred and forever foreclosed of all such
right, title, interest, claim, lien or equity of redemption, except as
otherwise provided in subdivisions e and f of this section. The appoint-
ment and tenure of receivers, trustees or any other persons, including
administrators under article seven-A of the real property actions and
proceedings law, appointed by an order of a court to manage real proper-
ty, shall terminate when title to such property vests in the city or a
third party pursuant to the provisions of this chapter. After such
termination, said receivers, trustees or administrators shall be
accountable to the courts that appointed them for the faithful perform-
ance of their fiduciary obligations during the term of their appointment
and to the city or such third party for any rents and income received by
them for any period subsequent to the date of the vesting of title in
the city or such third party.
If the city serves a tenant in possession of a dwelling unit with
notice of termination of tenancy on grounds other than nonpayment of
rent, the acceptance of rent for the first forty-five days after termi-
nation of tenancy by anyone other than an employee of the department
designated by the department to receive such rent shall not be deemed or
construed as a waiver of the city's right to initiate and prosecute a
proceeding to terminate the tenancy for good cause.
d. Within four months after the date on which, pursuant to subdivision
b of this section, the final judgment authorizing the award of
possession of a parcel of class one or class two real property was
entered, any person claiming to have an interest in such parcel shall
have the right to make a payment to the commissioner of finance consist-
ing of all taxes, assessments and other legal charges owing on said
parcel, the lawful interest thereon to the date of payment and a penalty
of five percent of said payment of taxes, assessments and other legal
charges and interest, which penalty may not exceed one thousand dollars.
Such payment shall be made in cash or by certified or bank check. Within
such four-month period, such interested person may also request an
installment agreement from the commissioner of finance. Such agreement
shall require, in addition to full payment of the penalty specified in
this subdivision at the time such agreement is entered into, the payment
at such time of a first installment equal to fifty percent of all taxes,
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assessments and other legal charges, and the lawful interest thereon,
then owing on such parcel, and the payment of the balance of such taxes,
assessments and other legal charges and interest in four equal quarterly
installments together with all current taxes, assessments and other
legal charges that accrue during such period. Upon receipt of payment in
full of the amount specified in this subdivision, the commissioner of
finance shall direct the corporation counsel to prepare and cause to be
entered an order discontinuing the in rem tax foreclosure action as to
said property, cancelling the notice of pendency of such action as to
said property and vacating and setting aside the final judgment. Upon
the execution of an installment agreement and payment of the amounts due
at the time such agreement is executed as provided in this subdivision,
the commissioner of finance shall direct the corporation counsel to
prepare and cause to be entered an order vacating and setting aside the
final judgment. The entry of either such order shall restore all
parties, including owners, mortgagees and any and all lienors, receivers
and administrators and encumbrancers, to the status they held immediate-
ly before such final judgment was entered. Where the commissioner of
finance approves an application requesting an installment agreement
pursuant to this subdivision, the order vacating and setting aside the
final judgment shall provide that in the event of any default as to the
payment of either quarterly installments or current taxes, assessments
or other legal charges during the term of such agreement, all payments
under said agreement shall be forfeited and the corporation counsel,
immediately upon notification by the commissioner of finance of such
default, shall cause to be entered as to such property a supplemental
judgment of foreclosure in the in rem action which authorizes the
commissioner of finance to prepare, execute and cause to be recorded a
deed conveying either to the city or to a third party full and complete
title to such lands. Upon the entry of such supplemental judgment, the
provisions of subdivisions c through i of this section shall apply in
the same manner as such subdivisions would have applied had no payment
been made nor installment agreement executed during the four-month peri-
od specified in this subdivision.
e. 1. If the commissioner of finance has prepared, executed and caused
to be recorded a deed conveying to the city full and complete title to a
parcel of class one or class two real property acquired by in rem tax
foreclosure, the city's interest in such parcel may be released pursuant
to this subdivision on the application of any party who has an interest
in said parcel as either owner, mortgagee, lienor, or encumbrancer at
the time of the city's acquisition thereof where such application is
made at any time up to sixteen months from the date on which the deed by
which the city acquired title to said parcel was recorded.
2. Any such application shall be made in writing to the commissioner
of general services and shall be verified. It shall contain the informa-
tion required pursuant to paragraph one of subdivision b of section
11-424 of this chapter, the documents required by subdivision c of such
section, and shall be accompanied by the fees required by paragraphs
three and six of subdivision b of such section. The fee required by
paragraph three of subdivision b of section 11-424 of this chapter shall
not be refundable.
3. The city's interest in any such parcel shall be released only after
payment of the sums of money specified in subdivision d of section
11-424 of this chapter.
4. The provisions contained in subdivision g of section 11-424 of this
chapter shall govern such an application, except as follows:
A. 10030 324
(a) where such provisions are inconsistent with the provisions
contained in this subdivision, the provisions contained in this subdivi-
sion shall govern such application; and
(b) where the in rem foreclosure release board denies a written
request for an installment agreement that was filed in connection with
an application for release of the city's interest in a parcel of class
one or class two real property and such application was filed within
thirty days of the date of the city's acquisition of the property sought
to be released, the board may, in its discretion, authorize a release of
the city's interest, provided that the applicant thereafter pays all the
amounts required to be paid pursuant to subdivision d of section 11-424
of this chapter within thirty days of the date on which a letter
requesting such payment is mailed or delivered to such applicant.
5. Upon receipt of all the amounts required to be paid pursuant to
this subdivision, the commissioner of finance shall direct the corpo-
ration counsel to prepare and cause to be entered an order discontinuing
the in rem tax foreclosure action as to said property, cancelling the
notice of pendency of such action as to said property and vacating and
setting aside the final judgment entered pursuant to subdivision b of
this section and the deed executed and recorded pursuant to such final
judgment as to said property. The entry of such order shall restore all
parties, including owners, mortgagees and any and all lienors, receivers
and administrators and encumbrancers, to the status they held immediate-
ly before the final judgment was entered, as if the in rem tax foreclo-
sure had never taken place, and shall render said property liable for
all taxes, deficiencies, management fees and liens which shall accrue
subsequent to those paid in order to obtain the release provided for in
this subdivision, or which were, for whatever reason, omitted from the
payment made to obtain said release.
f. If the commissioner of finance has prepared, executed and caused to
be recorded a deed conveying to the city full and complete title to a
parcel of class one or class two real property acquired by in rem tax
foreclosure and such parcel is entitled to an exemption under any of the
provisions of article four of the real property tax law during all or
part of the period covered by the tax items appearing on a list of
delinquent taxes, the owner of such parcel may apply for a release of
the city's interest in such exempt property under the provisions of
subdivision e of this section during the period of time set forth in
paragraph one of such subdivision and for an additional period up to ten
years from the date on which the deed by which the city acquired title
to said property was recorded. The application of such owner shall be
accompanied by the nonrefundable fee required by paragraph four of
subdivision b of section 11-424 of this chapter and shall contain, in
addition to the statements, searches and proofs required by subdivision
e of this section, a statement that an exemption under the real property
tax law is being claimed. Such application shall also state either that
it is accompanied by the written certificate of the comptroller setting
forth the precise period during which said property, while owned by such
application, and during the period after the city's acquisition up to
the date of the certificate if said property was still being used for an
exempt purpose after said acquisition, was entitled to an exemption and
the exact nature and extent of such exemption or that an application for
such written certificate has been filed with the comptroller. On issuing
such written certificate, the comptroller shall cancel those tax items
which have accrued during the period covered by the certificate to the
extent the applicant is entitled to an exemption as set forth in the
A. 10030 325
certificate. A release of the city's interest may be authorized only at
the discretion of the in rem foreclosure release board and, except as
otherwise provided in paragraph four of subdivision e of this section,
subject to all the restrictions set forth in subdivision g of section
11-424 of this chapter. A release to an exempt applicant shall be
effected only after said applicant has paid all of the amounts required
to be paid by subdivision d of section 11-424 of this chapter, except
for those tax items which have been canceled, in whole or in part,
pursuant to the comptroller's certificate, within thirty days of the
date on which the letter requesting payment is mailed or delivered to
the applicant.
g. If the commissioner of finance has prepared, executed and caused to
be recorded a deed conveying to the city or to a third party full and
complete title to a parcel of class one or class two real property
acquired by in rem tax foreclosure, the provisions contained in subdivi-
sions f and i of section 11-424 of this chapter for the release of prop-
erty so acquired shall not be available. If the commissioner of finance
has prepared, executed and caused to be recorded a deed conveying to a
third party full and complete title to a parcel of class one or class
two real property acquired by in rem tax foreclosure, the provisions
contained in subdivisions e and f of this section for the release of
property so acquired shall not be available.
h. Every deed given pursuant to the provisions of this section shall
be presumptive evidence that the action and all proceedings therein and
all proceedings prior thereto from and including the assessment of the
lands affected and all notices required by law were regular and in
accordance with all provisions of law relating thereto. After four
months from the date of entry of the final judgment authorizing the
award of possession of any parcel of class one or class two real proper-
ty pursuant to the provisions of this section, the presumption shall be
conclusive. No action to set aside such deed may be maintained unless
the action is commenced and a notice of pendency of the action is filed
in the office of the property county clerk prior to the time that the
presumption becomes conclusive as aforesaid. Should any lawsuit or
proceeding be commenced to set aside a deed conveying to a third party a
parcel of class one or class two real property pursuant to the
provisions of this section, such third party shall send to the corpo-
ration counsel within ten days of their receipt a copy of any papers
served on such third party in such lawsuit or proceeding.
i. If the commissioner of finance does not execute a deed conveying to
the city or to a third party a parcel of class one or class two real
property within eight months after the entry of final judgment authoriz-
ing the award of possession of such parcel pursuant to subdivision b of
this section, the commissioner of finance shall direct the corporation
counsel to prepare and cause to be entered an order discontinuing the in
rem foreclosure action as to said property, canceling the notice of
pendency of such action as to said property and vacating and setting
aside said final judgment. The entry of such order shall restore all
parties, including owners, mortgagees and any and all lienors, receivers
and administrators and encumbrancers, to the status they held immediate-
ly before such final judgment was entered.
j. If the commissioner of finance directs the corporation counsel,
pursuant to subdivision i of this section, to prepare and cause to be
entered an order discontinuing the in rem foreclosure action with
respect to a parcel of class one or class two real property determined
to be distressed pursuant to section 11-401.1 of this chapter, the
A. 10030 326
commissioner of housing preservation and development shall evaluate the
parcel determined to be distressed and take such action as he or she
deems appropriate under the programs, existing at the time of such eval-
uation, that are designed to encourage the rehabilitation and preserva-
tion of existing housing, and shall monitor or cause to be monitored the
status of the property. The commissioner of housing preservation and
development shall maintain a register of properties determined to be
distressed.
§ 11-412.2 Council review of conveyance to a third party. The commis-
sioner of finance shall, prior to the execution of a deed conveying full
and complete title of any parcel of class one or class two real property
to a third party pursuant to subdivision c of section 11-412.1 of this
chapter, notify the council of the proposed conveyance. Within forty-
five days of such notification, the council may act by local law disap-
proving the proposed conveyance. In the event the council does not act
by local law within such forty-five day period, the council shall be
deemed to have approved the proposed conveyance. During such forty-five
day period or, if the city council acts by local law pursuant to this
section, during the period of time from the notification of the council
to the presentation to the mayor of such local law and during any addi-
tional period of time prescribed in section 37 of the charter, the
eight-month period provided in subdivisions c and i of section 11-412.1
of this chapter shall be tolled.
§ 11-413 Withdrawal of parcels from foreclosure. a. The commissioner
of finance may, prior to final judgment, withdraw a parcel from a
proceeding under this chapter for any of the following reasons, (1) a
question which the commissioner deems meritorious has been raised as to
the validity of the tax liens affecting the parcel, (2) the city collec-
tor has accepted a payment of all taxes and interest which rendered the
parcel subject to foreclosure hereunder because the records in the
commissioner's office indicated that the principal amount of such taxes
was exceeded by the principal amount of subsequent taxes which would not
have rendered the parcel subject to foreclosure hereunder and which had
been paid prior to the commencement of said proceeding or (3) in cases
where the tax foreclosure action cannot be maintained such as, but not
limited thereto, where the charges which rendered a parcel subject to
foreclosure hereunder have been cancelled or were paid before the
commencement of the foreclosure proceeding but such payment was not
reported or did not clear for payment until after the commencement of
said proceeding, or where a name and address appearing on an owner's
registration card or an in rem card filed pursuant to section 11-416 or
11-417 of this chapter and contained in the files of the city collector
did not appear in the mailing list used by the commissioner of finance
for mailing notices of foreclosure in such proceeding.
b. To effectuate such withdrawal the commissioner of finance shall
deliver a certificate of withdrawal to the corporation counsel who shall
file it in the office of the county clerk in which the list of delin-
quent taxes was filed. The filing of such certificate with such county
clerk shall effect a discontinuance of the tax foreclosure action as to
the affected parcel, and the county clerk shall thereupon note such
withdrawal and discontinuance in the copy of the list of delinquent
taxes maintained by him or her adjacent to the county clerk's block
index of notices of pendency of action and shall cancel and discharge
any and all notations of the filing of said list of delinquent taxes as
to said parcel that may appear in any other books, records, indices and
dockets maintained in said clerk's office.
A. 10030 327
c. The commissioner of finance shall also deliver a duplicate original
certificate of withdrawal to the person entitled to such withdrawal.
d. The commissioner of finance shall recite the parcels so withdrawn
and the reasons for withdrawal in an affidavit of regularity to be
submitted by the commissioner in each action brought pursuant to this
chapter.
e. The commissioner of finance shall issue a certificate of withdrawal
whenever taxes and interest are paid, cancelled, liquidated or otherwise
lawfully disposed of as to any parcel which was previously severed
pursuant to section 11-409 of this chapter because an answer or liti-
gation was pending.
§ 11-414 Right of redemption not diminished. The period of time in
which any owner of, or other person having an interest in a parcel of
property may redeem from a sale of a transfer of tax lien is not hereby
diminished nor shall such period of time be diminished by the commence-
ment of any action brought pursuant to this chapter.
§ 11-415 Priority of liens. Tax liens shall rank in priority as may
now, or as may hereafter, be provided by law.
§ 11-416 Owner's registration cards; mailing tax bills and notices to
registered owners or their designees. a. The commissioner of finance
shall maintain a file of owner's registration cards submitted by owners
of real property. Each such owner's registration card shall be signed by
the owner or a duly authorized representative and shall state the date
on which it was filed, the owner's full name and post office address and
a description of the premises by reference to the section, block, and
lot numbers on the tax map.
b. The commissioner of finance shall mail bills for taxes, charges and
assessments to all owners who have filed owner's registration cards as
herein provided, but the failure of the commissioner of finance so to
mail such bill shall not invalidate or otherwise affect the tax, charge
or assessment represented thereby nor prevent the accruing of any inter-
est or penalty imposed for the non-payment thereof, nor prevent or stay
proceedings under this chapter, nor effect the title of the plaintiff or
any purchaser under such proceedings.
c. The commissioner of finance shall also mail notice of foreclosure
and any other process required by this chapter to all owners who have
filed owner's registration cards whenever the parcels as to which such
cards were filed are included in a list of delinquent taxes filed pursu-
ant to this chapter. The failure to receive such notice or process as
herein provided shall not affect the validity of any action or proceed-
ing brought pursuant to this chapter.
d. An owner who files an owner's registration card may also designate
thereon the full name and post office address of a mortgagee, lienor or
other person to receive bills and notices. Where such designation is
made, the commissioner of finance shall not mail any bills and notices
to the owner but shall mail all bills and notices to the owner's desig-
nee.
§ 11-417 In rem cards; mailing notices to other interested persons.
a. The commissioner of finance shall, in addition to the file maintained
by him or her pursuant to section 11-416 of this chapter, maintain a
file of in rem cards submitted by any person having an interest in real
property who is not entitled to have tax bills mailed to him or her by
the commissioner of finance, including mortgagees, lienors, encumbranc-
ers and owners who have filed owner's registration cards designating
someone else to receive bills and notices. Each such in rem card shall
be signed by the person filing such card or a duly authorized represen-
A. 10030 328
tative, shall contain a description of the premises by reference to the
section, block and lot numbers on the tax map and shall state the date
on which said card was filed, the full name and post office address of
the person filing said card and the nature of the interest said person
has in said premises.
b. The commissioner of finance shall mail a notice of foreclosure and
any other process required by this chapter to each person who has filed
an in rem card whenever the parcels to which such cards refer are
included in a list of delinquent taxes filed pursuant to this chapter.
However, failure to receive such notice or process shall not affect the
validity of any proceeding brought pursuant to this chapter.
§ 11-418 Writ of assistance. The city, after acquiring title to prem-
ises under and pursuant to the terms and provisions of this chapter,
shall be entitled to a writ of assistance, with the same force and
effect as if the city had acquired the property by virtue of a mortgage
foreclosure.
§ 11-419 Consolidation of actions. Actions or proceedings pending in
the courts, or otherwise, to cancel a sale of a tax lien on lands a lien
upon which is being foreclosed by action under this chapter, shall be
terminated upon the institution of a foreclosure action pursuant to this
chapter, and the rights and remedies of the parties in interest to such
pending actions or proceedings shall be determined by the court in such
foreclosure action.
§ 11-420 Lands held for public use; right of sale. Whenever the city
shall become vested with the title to lands by virtue of a foreclosure
proceeding brought pursuant to the provisions of this chapter, such
lands shall, unless actually used for other than municipal purposes, be
deemed to be held by the city for a public use but for a period of not
more than three years from the date of the final judgment. The city is
hereby authorized to sell and convey such lands in the manner provided
by law for the sale and conveyance of other real property held and owned
by the city and not otherwise.
§ 11-421 Certificate of sale as evidence. The transfer of tax lien or
any other written instrument representing a tax lien shall be presump-
tive evidence in all courts in all proceedings under this chapter by and
against the purchaser and his or her representatives, heirs and assigns,
of the truth of the statements therein, of the title of the purchaser to
the property therein described, and of the regularity and validity of
all proceedings had in reference to the taxes, assessments or other
legal charges for the nonpayment of which the tax lien was sold and the
sale thereof. After two years from the issuance of such certificate or
other written instrument, no evidence shall be admissible in any court
in a proceeding under this chapter to rebut such presumption unless the
holder thereof shall have procured such transfer of tax lien or such
other written instrument by fraud or had previous knowledge that it was
fraudulently made or procured.
§ 11-422 Deed in lieu of foreclosure. The city may when authorized by
resolution of the successor agency, officer or employee of the former
board of estimate and in lieu of prosecuting an action to foreclose a
tax lien on any parcel pursuant to this chapter accept a conveyance of
the interest of any person having any right, title, interest, claim,
lien or equity of redemption in or to such parcel.
§ 11-423 Sales and foreclosures of tax liens. Notwithstanding any of
the provisions of this chapter the city may continue to sell tax liens,
transfer the same to purchasers and become the purchaser at such sales
of tax liens in the manner provided by this title.
A. 10030 329
§ 11-424 Application to the city for release of property acquired by
in rem tax foreclosure. a. (1) The city's interest in property acquired
by in rem tax foreclosure may be released pursuant to this section on
the application of any party who had an interest in said property as
either owner, mortgagee, lienor or encumbrancer at the time of the
city's acquisition thereof where such application is made at any time up
to two years from the date on which the deed by which the city acquired
title to said property was recorded.
(2) Notwithstanding any inconsistent provision of paragraph one of
this subdivision to the contrary, the city's interest in property
acquired by in rem tax foreclosure may be released pursuant to this
section upon application of any party who had an interest in said prop-
erty as either owner, mortgagee, lienor or encumbrancer at the time of
the city's acquisition thereof where such application is made more than
two years after the date on which the deed by which the city acquired
title to said property was recorded provided such application is author-
ized by the council as hereinafter provided. An application for such
release and the documents required by subdivision c of this section in
support thereof shall be filed with the department of citywide adminis-
trative services in the manner provided in subdivision b of this
section. The department of citywide administrative services shall give
the council written notice of the receipt of each such filing. After
review and approval of the application by the corporation counsel as to
form and eligibility of the applicant, the department of citywide admin-
istrative services shall send a copy of such application to the in rem
foreclosure release board and to the council. Upon receipt of such
application, the in rem foreclosure release board shall take no further
action on such application unless the council adopts a resolution within
one hundred twenty days following the first stated meeting of the coun-
cil after receipt of such application authorizing the board to consider
such application. If the council fails to adopt a resolution within such
one hundred twenty-day period, the council shall be deemed to have
denied its authorization for the board to consider such application. A
resolution of the council pursuant to this paragraph shall describe the
property for which release is sought by borough, tax map, block and lot
number and shall specify that release of the city's interest in such
property is subject to the approval of the in rem foreclosure release
board and to all the conditions and restrictions set forth in this
section.
b. 1. Any such application shall be made in writing to the commission-
er of citywide administrative services and shall be verified. It shall
contain the name and address of the applicant and shall state the date
on which and the in rem action by which the city acquired title to the
property sought to be released. It shall also contain a statement speci-
fying the nature of the applicant's interest in the property and a full
description of the instrument from which the applicant's interest
derives including the date of execution, the date and place of the
recording or entry of said instrument and the parties thereto. In the
event the applicant's interest arises by reason of the death of a prior
owner, mortgagee, lienor or encumbrancer, then the application shall
also state the applicant's relationship to said decedent and shall
include whatever additional information may be necessary to prove the
applicant's right to make such application.
2. A fee of two hundred seventy-five dollars shall be paid on the
submission of any such application which is subject to the provisions of
subdivision f of this section, except that the fee for any such applica-
A. 10030 330
tion for the release of property improved by a one or two-family dwell-
ing shall be one hundred dollars.
3. A fee of five hundred fifty dollars shall be paid on the submission
of any such application which is subject to the provisions of subdivi-
sion g of this section, except that the fee for any such application for
the release of property improved by a one or two-family dwelling shall
be one hundred dollars.
4. A fee of two hundred seventy-five dollars shall be paid on the
submission of any such application which is subject to the provisions of
subdivision h of this section within four months from the date on which
the deed by which the city acquired title to the subject property was
recorded, and a fee of five hundred and fifty dollars shall be paid on
the submission of any such application which is subject to the
provisions of such subdivision not within four months from such date;
except that the fee for any such application which is subject to the
provisions of such subdivision for the release of property improved by a
one or two-family dwelling shall be one hundred dollars.
5. The fees payable pursuant to paragraphs two, three and four of this
subdivision shall not be refundable.
6. In addition to the fees specified in paragraphs two, three and four
of this subdivision, there shall be paid on the submission of any appli-
cation which is subject to this section an amount at least equal to the
lesser of nine hundred dollars or the sum specified in paragraph one of
subdivision d of this section, which amount shall not be refundable, but
shall be applied in reduction of the sum specified in paragraph one of
subdivision d of this section; provided, however, that if a release
requires the authorization of the in rem foreclosure release board, and
such authorization is not given, such additional amount shall be
refunded to the applicant.
c. Each application shall be supported by the certified search of the
city register or by an official letter, certificate or certified search
of any title insurance or abstract company, organized and doing business
under the laws of this state. Such supporting instruments shall recite
the recording data both as to the deed by which the city acquired title
to the parcel sought to be released and the instrument from which the
applicant's interest derives. In the event the applicant's interest does
not appear of record but is derived by the death of an owner, mortgagee,
lienor or encumbrancer of record, then the application shall also be
supported by the affidavit of the applicant or other person having
information thereof, or by the duly written certificate or certification
of the county clerk or the clerk of any surrogate's or other court of
record, or by any other instrument or document required by the corpo-
ration counsel to substantiate the applicant's right to file such appli-
cation in compliance with the provisions of this section.
d. The city's interest shall be released only after payment, as to
each parcel to be released, of the following sums of money:
1. The principal amount due on all unpaid taxes, assessments, water
charges and sewer rents appearing on the list of delinquent taxes and
accruing thereafter together with interest at the rate or rates provided
by law.
2. Five percent of the amount paid pursuant to the preceding paragraph
but not exceeding one thousand dollars for each parcel.
3. Any deficiency which may result to the city after all payments made
by it for the repair, maintenance, and operation of the lands, real
estate or real property shall have been charged or debited in the appro-
priate accounts of the city and all rents, license fees and other moneys
A. 10030 331
collected by the city as a result of its operation of the said lands,
real estate or real property shall have been credited in such accounts.
Any contract for repair, maintenance, management or operation made by
the city on which it shall be liable, although payment thereon shall not
have been made, shall be deemed a charge or debit to such accounts as
though payment had been made. The amounts paid and collected by the city
as shown in its accounts and the necessity for making the several
payments and contracts to be charged as herein provided shall be conclu-
sive upon the applicant. Where a deficiency under this subdivision shall
be created or increased by the failure of the city to collect rents,
license fees or other moneys to which the city may have been entitled,
the right to collect or to bring action for the same shall be assigned,
transferred and set over to the applicant by an instrument in writing.
4. Any and all costs and disbursements which shall have been awarded
to the city or to which it may have become entitled by operation of law
or which it may have paid or become liable for payment in connection
with any litigation between it and the applicant or any person having an
estate or interest in the lands, real estate or real property to be
released resulting directly or indirectly from the foreclosure by action
in rem of the delinquent taxes affecting said lands, real estate or real
property.
5. A reasonable monthly fee to be determined by the city, through the
department of citywide administrative services, for management services
and operations of the lands, real estate or real property by the city
prior to the release of said lands, real estate or property.
6. The city, through the department of citywide administrative
services, shall also require as additional consideration for such
release, the payment of all arrears on mortgages held by the city and
all liens accruing to it by operation of law including but not limited
to relocation and emergency repair liens.
e. The corporation counsel shall effect the release of the city's
interest in property acquired by in rem tax foreclosure, as provided for
in this section, by preparing and causing to be entered an order discon-
tinuing the in rem tax foreclosure action as to said property, cancel-
ling the notice of pendency of such action as to said property and
vacating and setting aside the in rem judgment of foreclosure and the
deed executed and recorded pursuant to such judgment of foreclosure as
to said property. The entry of such order shall restore all parties,
including owners, mortgagees and any and all lienors, receivers and
administrators and encumbrancers, to the status they held at the time
the city acquired title to said property, as if the in rem tax foreclo-
sure had never taken place, and shall render said property liable for
all taxes, deficiencies, management fees and liens which shall accrue
subsequent to those paid in order to obtain the release provided for in
this section, or which were, for whatever reason, omitted from the
payment made to obtain said release.
f. If an application pursuant to this section, and the documents
required by subdivision c of this section in support thereof, are filed
within four months after the date of the city's acquisition of the
subject property, said application shall be granted providing the corpo-
ration counsel approves the application as to form, timeliness and
eligibility of the applicant and providing the applicant has paid all
amounts required to be paid by subdivision d of this section within
thirty days of the date on which a letter requesting applicant to make
such payment is mailed or delivered to the applicant. The city shall not
sell or assign any property acquired by in rem tax foreclosure within
A. 10030 332
four months of said acquisition but this provision shall not prevent the
city from authorizing condemnation of such property or vesting title
thereto in a condemnation proceeding during said four month period. In
the event an application pursuant to this section is filed within four
months of the city's acquisition by in rem tax foreclosure and title to
the subject property vests in condemnation before the city's interest
therein has been released by the vacate order provided for herein, the
applicant shall be entitled to the condemnation award for such property
without the entry of such vacate order, providing the corporation coun-
sel has approved the application as aforesaid and providing that the
amounts specified in subdivision d of this section, if not previously
paid, are deducted from said condemnation award, with taxes apportioned
to the date of the condemnation title vesting.
g. If an application for a release of the city's interest in property
acquired by in rem tax foreclosure, and the documents required by subdi-
vision c of this section in support thereof, have been filed within the
time allowed in paragraph one of subdivision a of this section, but more
than four months after the date of the city's acquisition or if an
application for such release has been authorized by a resolution of the
council pursuant to paragraph two of subdivision a of this section and
such application and the documents required by subdivision c of this
section in support thereof have been filed, the in rem foreclosure
release board may, in its discretion, authorize the release of the
city's interest in said property pursuant to this section, provided that
the application has been approved by the corporation counsel as to form,
timeliness and eligibility of the applicant and provided that the city
has not sold or otherwise disposed of said property and provided,
further, that said property has not been condemned or assigned to any
agency of the city and is not the subject of contemplated use for any
capital or urban renewal project of the city. The corporation counsel
shall effect such discretionary release only where the applicant, after
the board's authorization of the release, has paid all the amounts
required to be paid by subdivision d of this section within thirty days
of the date on which a letter requesting the applicant to make such
payment is mailed or delivered to the applicant. The in rem foreclosure
release board may also, in its discretion, authorize a release of the
city's interest in such property, pursuant to the above provisions,
whenever an application for such release, approved as to form, timeli-
ness and eligibility by the corporation counsel, has been filed at any
time during the period allowed in subdivision a of this section in which
the applicant has requested an installment agreement of the commissioner
of citywide administrative services for the payment of the amounts
required to be paid by subdivision d of this section provided that said
commissioner has approved such request. The commissioner of citywide
administrative services shall not approve any such request unless the
applicant shall have given notice by certified mail to each tenant
located on the parcel, of the request and shall have given such commis-
sioner an affidavit stating that such notice has been provided, within
thirty days after the request. Any false statement in such affidavit
shall not in any way affect the validity of the agreement, be grounds
for its cancellation or in any way affect the release of the city's
interest in the parcel. Such agreement shall require, in addition to
full payment of the amounts due under paragraphs two, three, four, five
and six of subdivision d of this section, a first installment of fifty
percent of the amount due under paragraph one of said subdivision d with
the balance of said amount to be paid in four equal quarterly install-
A. 10030 333
ments together with all current taxes, assessments or other legal charg-
es that accrue during such period; provided, however, that: (i) whenever
a request for an installment agreement is made of the commissioner of
citywide administrative services by a company organized pursuant to
article eleven of the private housing finance law with the consent and
approval of the department of housing preservation and development or
for a parcel which is an owner-occupied residential building of not more
than five residential units, the commissioner of citywide administrative
services may, as to that portion of the amounts due under paragraph one
of subdivision d of this section which became due prior to the acquisi-
tion by the article eleven company of its interest in the property and
as to the amount due under paragraph one of subdivision d of this
section in the case of such an owner-occupied building, approve a
reduction of such first installment to an amount not less than ten
percent of the amount due under paragraph one of subdivision d of this
section and an increase in the number of the following equal quarterly
installments to a number which shall be equal to three times the number
of unpaid quarters of real estate taxes or the equivalent thereof but
which shall in no event exceed forty-eight, and (ii) notwithstanding
clause (i) of this paragraph, whenever an installment agreement is
requested on or after the date on which this clause takes effect with
respect to a parcel that, immediately prior to the city's acquisition
thereof by in rem tax foreclosure, was owned by a company organized
pursuant to article eleven of the state private housing finance law with
the consent and approval of the department of housing preservation and
development, or with respect to a parcel that is a residential building
containing not more than five residential units, a residential condomin-
ium unit or a residential building held in a cooperative form of owner-
ship, the commissioner of general services may, as to the amount due
under paragraph one of subdivision d of this section, approve an
installment agreement containing the terms relating to the required
percentage payment for the first installment and the required number of
subsequent quarterly installments, that would be applicable to such
parcel under paragraph two (but without regard to any reference therein
to paragraph three) of subdivision i of section 11-409 of this chapter.
For purposes of calculating the number of such following equal quarterly
installments, unpaid real estate taxes or the equivalent which are, on
and after July first, nineteen hundred eighty-two, due and payable on an
other than quarterly basis shall be deemed to be payable on a quarterly
basis. Where the in rem foreclosure release board denies an application
requesting an installment agreement the board shall authorize a release
of the city's interest, provided that the applicant thereafter pays all
the amounts required to be paid by subdivision d of this section within
thirty days of the date on which a letter requesting such payment is
mailed or delivered to the applicant only when said application and the
documents required by subdivision c of this section in support thereof
were filed within thirty days of the date of the city's acquisition of
the property sought to be released. Where the in rem foreclosure
release board denies an application requesting an installment agreement
which was filed more than thirty days after the date of the city's
acquisition, the board may, in its discretion, authorize a release of
the city's interest, provided that the applicant thereafter pays all the
amounts required to be paid by subdivision d of this section within
thirty days of the date on which a letter requesting such payment is
mailed or delivered to the applicant. Where the in rem foreclosure
release board approves an application requesting an installment agree-
A. 10030 334
ment, the order releasing the city's interest shall provide that in the
event of any default as to the payment of either quarterly installments
or current taxes, assessments or other legal charges during the term of
such agreement, as set forth in the board's resolution, all payments
made under said agreement shall be forfeited and the city shall be enti-
tled to reacquire the property so released. The corporation counsel
shall effect such reacquisition by causing to be entered as to such
property a supplemental judgment of foreclosure in the in rem action by
which said property was originally acquired immediately on notification
by the commissioner of finance of such default.
h. An owner of property entitled to an exemption under any of the
provisions of article four of the real property tax law during all or
part of the period covered by the tax items appearing on a list of
delinquent taxes may apply for a release of the city's interest in such
exempt property under the provisions of this section during the periods
of time set forth herein and for an additional period up to ten years
from the date of the city's acquisition of said property by in rem fore-
closure. The application of such owner shall contain, in addition to the
statements, searches and proofs required by this section, a statement
that an exemption under the real property tax law is being claimed. Such
application shall also state either that it is accompanied by the writ-
ten certificate of the comptroller setting forth the precise period
during which said property, while owned by such applicant, and during
the period after the city's acquisition up to the date of the certif-
icate if said property was still being used for an exempt purpose after
said acquisition, was entitled to an exemption and the exact nature and
extent of such exemption or that an application for such written certif-
icate has been filed with the comptroller. On issuing such written
certificate, the comptroller shall cancel those tax items which have
accrued during the period covered by the certificate to the extent the
applicant is entitled to an exemption as set forth in the certificate.
Where an application by an exempt owner is filed more than four months
after the date of the city's acquisition of the subject property, a
release of the city's interest may be issued only at the discretion of
the in rem foreclosure release board and subject to all the restrictions
set forth in subdivision g of this section. A release to an exempt
applicant shall be effected only after said applicant has paid all the
amounts required to be paid by subdivision d of this section, except for
those tax items which have been cancelled, in whole or in part, pursuant
to the comptroller's certificate, within thirty days of the date on
which a letter requesting payment is mailed or delivered to the appli-
cant.
i. The corporation counsel shall also effect the release of the city's
interest in property acquired by in rem foreclosure, as provided for in
this action, whenever the commissioner of finance shall accept as to any
parcel so acquired, the payment provided for in paragraph two of subdi-
vision a of section 11-413 of this chapter. Said commissioner may accept
such payment at any time within four months of the date of the city's
acquisition and may further, subject to the approval of the in rem fore-
closure release board, accept such payment at any time more than four
months after the date of the city's acquisition but less than two years
from the date on which the city's deed was recorded providing said prop-
erty has not been sold or otherwise disposed of nor condemned or
assigned to any agency of the city and is not the subject of contem-
plated use of any capital or urban renewal project of the city.
A. 10030 335
§ 11-424.1 In rem foreclosure release board. There shall be an in rem
foreclosure release board consisting of the mayor, the speaker of the
city council, the borough president, the corporation counsel and the
commissioner of finance. Members of the board may, by written authority
filed with the board and with the city clerk, appoint delegates to act
on their behalf as members of the board. The board shall have the power,
acting by resolution, to authorize the release of the city's interest in
property acquired by in rem tax foreclosure in accordance with sections
11-412.1 and 11-424 of the code based upon a determination, in its
discretion, that such release would be in the best interests of the
city. The board shall act after a meeting at which the public has been
provided an opportunity to comment on the proposed action. A resolution
of the board authorizing a release of the city's interest in any proper-
ty shall be adopted only upon the affirmative vote of not less than a
majority of all the members of the board. The board may consider any
information it deems relevant to a determination. The board shall not be
required to state the reasons for its determination.
§ 11-425 Agreements for payment of delinquent taxes and charges in
installments. a. During the period beginning on May ninth, nineteen
hundred seventy-seven and ending on June thirtieth, nineteen hundred
seventy-seven, the commissioner of finance or, when so specified herein-
after, the commissioner of general services, shall be authorized and
empowered to make and execute agreements in the circumstances and
subject to the terms, conditions and limitations set forth in this
section; provided, however, that if the commissioner of finance or,
where applicable, the commissioner of general services determines in his
or her sole discretion that good cause exists, he or she may make and
execute such agreements during an additional period ending not later
than July thirty-first, nineteen hundred seventy-seven.
b. (1) Whenever it shall appear that a tax lien on a parcel has been
due and unpaid for a period of at least six months from the date on
which the tax, assessment or other legal charge represented thereby
became a lien, the commissioner of finance may enter into an agreement
with the owner of such parcel or other person claiming to have an inter-
est therein providing for the payment of such delinquent taxes, assess-
ments or other legal charges and interest and penalties in installments,
the first of which shall be equal to at least fifteen percent of such
arrears and shall be payable upon the execution of such agreement. Each
remaining installment shall be equal to at least an amount produced by
dividing the balance of such arrears by a factor determined by multiply-
ing the number of quarters of such arrears by two hundred percent;
provided, however, in no event shall such factor be in excess of thir-
ty-two. Each such remaining installment shall be payable quarterly on
the first of July, October, January and April.
(2) If an agreement authorized by paragraph one of this subdivision is
executed prior to the time the commissioner of finance files in the
office of the county clerk a list of delinquent taxes covering the city
or portion of the city in which the subject parcel is located, such
parcel shall be excluded from such list of delinquent taxes, provided,
at the time such list is filed, there is no default in the agreement and
all current taxes, assessments or other legal charges have been paid as
they became due or within the period of grace provided by law. In the
event of any default in the agreement or any failure to make timely
payment of any current item, the parcel shall, if then delinquent for
the applicable period specified in section 11-404 of this chapter, be
eligible for inclusion in any list of delinquent taxes thereafter filed.
A. 10030 336
(3) If an in rem foreclosure action has been commenced against any
parcel prior to May ninth, nineteen hundred seventy-seven, the commis-
sioner of finance may, notwithstanding the provisions of paragraph three
of subdivision a of section 11-413 of this chapter, enter into an agree-
ment authorized and described in the foregoing provisions of this
section with respect to such parcel. However, if such an agreement is
entered into subsequent to the last date for redemption specified in
subdivision a of section 11-407 of this chapter, there shall be paid to
the commissioner of finance at the time said agreement is executed an
amount equal to the penalty which would have been payable under subdivi-
sion c of section 11-407 of this chapter had the person executing the
agreement made a late redemption payment. Such amount shall be in addi-
tion to any installment payments required to be made under the agreement
and shall not be credited against any such installment payments. Any
parcel which is the subject of an agreement made pursuant to this para-
graph may, prior to final judgment, be withdrawn from the action,
provided there has been no default in the agreement, and provided
further that all current taxes, assessments or other legal charges are
paid when they become due or within the period of grace provided by law.
Such withdrawal shall be effected by the commissioner of finance in the
manner provided in section 11-413 of this chapter.
(4) Any person who, prior to May ninth, nineteen hundred seventy-sev-
en, has made, executed and filed with the commissioner of finance an
agreement pursuant to the provisions of paragraph three of subdivision a
of section 11-413 of this chapter, shall be permitted to make applica-
tion to the commissioner of finance for the purpose of having such
agreement cancelled and a new agreement executed as hereinabove
provided.
If an agreement executed prior to May ninth, nineteen hundred seven-
ty-seven is not cancelled as herein provided, any installments due and
payable under such agreement on or after July first, nineteen hundred
seventy-seven shall be subject to interest at the rate specified in
paragraph five of this subdivision, but only if, as of July first, nine-
teen hundred seventy-seven, there is no default in the agreement and all
current taxes, assessments or other legal charges have been paid within
the time allowed by law. Such rate of interest shall be calculated in
the manner and shall be subject to all the conditions provided in said
paragraph five.
(5) When an agreement has been entered into pursuant to this subdivi-
sion, the commissioner of finance shall, notwithstanding the rates of
interest prescribed in section 11-224, 11-312 or 11-313 of this title,
charge, collect and receive interest on the arrears due and payable
under such agreement, to be calculated at the rate of seven percent per
annum from July first, nineteen hundred seventy-seven to the date of
payment of each installment. Any interest accrued or accruing prior to
July first, nineteen hundred seventy-seven shall not be affected by the
provisions of this paragraph, but shall be charged, collected and
received in the manner and at the rates specified in section 11-224,
11-312 or 11-313 of this title. The seven percent rate of interest spec-
ified in this paragraph shall be applicable only if (i) there is no
default in the agreement entered into as provided in this section, and
(ii) all current taxes, assessments or other legal charges are paid as
they become due or within the period of grace provided by law. In the
event of any default or failure to make timely payment of any current
item, the seven percent rate of interest specified in this paragraph
shall thereupon cease to be applicable and the commissioner of finance
A. 10030 337
shall thereafter charge, collect and receive interest in the manner and
at the rates otherwise specified in this title.
(6) In addition to the terms and conditions required by the preceding
paragraphs of this subdivision to be included in agreements authorized
by this section, the commissioner of finance may in his or her
discretion include in such agreements such additional terms and condi-
tions, not inconsistent with this section, as he or she determines to be
necessary in order to properly carry out the provisions of this section.
The commissioner may also adopt such rules and regulations as may be
necessary to carry out the provisions of this section.
c. (1) If, pursuant to the provisions of section 11-424 of this chap-
ter, an application for the release of property acquired by the city
through in rem tax foreclosure is made within the four-month period
specified in subdivision f of section 11-424 of this chapter, and
provided such application is made during the period specified in subdi-
vision a of this section, the provisions of this subdivision shall, at
the election of the applicant, apply with respect to such application
and the release sought thereby.
(2) At the time of filing the application for release, an applicant
who elects to have the provisions of this subdivision apply to him or
her, shall pay to the city the amounts specified in paragraphs two,
three and four of subdivision d of section 11-424 of this chapter, for
this purpose, the amount specified in paragraph two thereof shall be
deemed to be the amount which would have been required to be paid there-
under had this section not been in effect. Concurrent with the making of
such payment, the applicant shall enter into an agreement with the
commissioner of general services providing for the payment of all
current taxes, assessments or other legal charges on the property as
they become due or within the grace period provided by law, and, in
addition, providing for the payment of the amount specified in paragraph
one of subdivision d of section 11-424 of this chapter in installments,
the first of which shall be equal to at least twenty-five percent of
such amount and shall be payable upon the execution of such agreement.
The balance of such amount shall be payable in twelve equal quarterly
installments, each of which shall be paid quarterly on the first of
July, October, January and April.
(3) Pending approval by the corporation counsel of an application for
release as to form, timeliness and eligibility of the applicant, all
payments made pursuant to the preceding paragraph shall be held in
escrow; in the event the corporation counsel disapproves the applica-
tion, such payments shall be returned to the applicant, and the agree-
ment executed by the applicant shall thereupon be cancelled.
(4) In the case of any agreement made and executed pursuant to para-
graph two hereof, interest on any installment due and payable thereunder
shall, notwithstanding the rates of interest prescribed in section
11-224, 11-312 or 11-313 of this title, be charged, collected and
received at the rate of seven percent per annum from July first, nine-
teen hundred seventy-seven to the date of payment of each installment.
Any interest accrued or accruing prior to July first, nineteen hundred
seventy-seven shall not be affected by the provisions of this paragraph,
but shall be charged, collected and received in the manner and at the
rates specified in section 11-224, 11-312 or 11-313 of this title. The
seven percent rate of interest specified in this paragraph shall be
applicable only if (i) there is no default in the agreement entered into
as provided in this subdivision, and (ii) all current taxes, assessments
A. 10030 338
or other legal charges are paid as they become due or within the period
of grace provided by law.
(5) No release for which application has been made pursuant to this
subdivision shall be granted until the final payment under the agreement
herein provided is received by the city. Upon receipt of such final
payment by the city the corporation counsel shall effect the release in
the manner provided in section 11-424 of this chapter. In the event of
any default in an agreement executed as provided in this subdivision or
any failure to pay current taxes, assessments or other legal charges as
they become due or within the grace period provided by law, such agree-
ment shall thereupon become void, the release process shall be termi-
nated, and all payments theretofore made shall be forfeited to the city.
(6) In addition to the terms and conditions required by the preceding
paragraphs of this subdivision to be included in agreements authorized
thereby, the commissioner of general services may in his or her
discretion include in such agreements such additional terms and condi-
tions, not inconsistent with this subdivision, as the commissioner
determines to be necessary in order to properly carry out the provisions
hereof. The commissioner of general services may also adopt such rules
and regulations as may be necessary to carry out the provisions of this
subdivision.
§ 11-426 Agreements for payment of delinquent taxes and charges in
installments. a. During the period beginning on December second, nine-
teen hundred seventy-seven and ending on March thirty-first, nineteen
hundred seventy-eight, the commissioner of finance, or, when so speci-
fied hereinafter, the commissioner of general services, shall be author-
ized and empowered to make and execute agreements in the circumstances
and subject to the terms, conditions and limitations set forth in this
section.
b. (1) Whenever it shall appear that a tax lien on a parcel has been
due and unpaid for a period of at least six months from the date on
which the tax, assessment or other legal charge represented thereby
became a lien, the commissioner of finance may enter into an agreement
with the owner of such parcel or other person claiming to have an inter-
est therein providing for the payment of such delinquent taxes, assess-
ments or other legal charges and interest and penalties in installments,
the first of which shall be equal to at least fifteen percent of such
arrears and shall be payable upon the execution of such agreement. Each
remaining installment shall be equal to at least an amount produced by
dividing the balance of such arrears by a factor determined by multiply-
ing the number of quarters of such arrears by two hundred percent. In no
event, however, shall the factor referred to in the preceding sentence
be in excess of thirty-two. Each such remaining installment shall be
payable quarterly on the first of July, October, January and April.
(2) If an agreement authorized by paragraph one of this subdivision is
executed prior to the time the commissioner of finance files in the
office of the county clerk a list of delinquent taxes covering the city
or portion of the city in which the subject parcel is located, such
parcel shall be excluded from such list of delinquent taxes, provided,
at the time such list is filed, there is no default in the agreement and
all current taxes, assessments or other legal charges have been paid as
they became due or within the period of grace provided by law. In the
event of any default in the agreement or any failure to make timely
payment of any current item, the parcel shall, if then delinquent for
the applicable period specified in section 11-404 of this chapter, be
eligible for inclusion in any list of delinquent taxes thereafter filed.
A. 10030 339
(3) If an in rem foreclosure action has been commenced against any
parcel prior to December second, nineteen hundred seventy-seven, the
commissioner of finance may, notwithstanding the provisions of paragraph
three of subdivision a of section 11-413 of this chapter, enter into an
agreement authorized and described in the foregoing provisions of this
section with respect to such parcel. However, if such an agreement is
entered into subsequent to the last date for redemption specified in
subdivision a of section 11-407 of this chapter, there shall be paid to
the commissioner of finance at the time said agreement is executed an
amount equal to the penalty which would have been payable under subdivi-
sion c of section 11-407 of this chapter had the person executing the
agreement made a late redemption payment. Such amount shall be in addi-
tion to any installment payments required to be made under the agreement
and shall not be credited against any such installment payments. Any
parcel which is the subject of an agreement made pursuant to this para-
graph may, prior to final judgment, be withdrawn from the action,
provided there has been no default in the agreement, and provided
further that all current taxes, assessments or other legal charges are
paid when they become due or within the period of grace provided by law.
Such withdrawal shall be effected by the commissioner of finance in the
manner provided in section 11-413 of this chapter.
(4) Any person who, prior to December second, nineteen hundred seven-
ty-seven, has made, executed and filed with the commissioner of finance
an agreement pursuant to the provisions of paragraph three of subdivi-
sion a of section 11-413 of this chapter, shall be permitted to make
application to the commissioner of finance for the purpose of having
such agreement cancelled and a new agreement executed as hereinabove
provided.
If an agreement executed prior to December second, nineteen hundred
seventy-seven is not cancelled as herein provided, any installments due
and payable under such agreement on or after April first, nineteen
hundred seventy-eight shall be subject to interest at the rate specified
in paragraph five of this subdivision, but only if, as of April first,
nineteen hundred seventy-eight, there is no default in the agreement and
all current taxes, assessments or other legal charges have been paid
within the time allowed by law. Such rate of interest shall be calcu-
lated in the manner and shall be subject to all the conditions provided
in said paragraph five.
(5) When an agreement has been entered into pursuant to this subdivi-
sion, the commissioner of finance shall, notwithstanding the rates of
interest prescribed in section 11-224, 11-312 or 11-313 of this title,
charge, collect and receive interest on the arrears due and payable
under such agreement to be calculated at the rate of seven percent per
annum from April first, nineteen hundred seventy-eight to the date of
payment of each installment. Any interest accrued or accruing prior to
April first, nineteen hundred seventy-eight shall not be affected by the
provisions of this paragraph, but shall be charged, collected and
received in the manner and at the rates specified in section 11-224,
11-312 or 11-313 of this title. The seven percent rate of interest spec-
ified in this paragraph shall be applicable only if (i) there is no
default in the agreement entered into as provided in this section, and
(ii) all current taxes, assessments or other legal charges are paid as
they become due or within the period of grace provided by law. In the
event of any default or failure to make timely payment of any current
item, the seven percent rate of interest specified in this paragraph
shall thereupon cease to be applicable and the commissioner of finance
A. 10030 340
shall thereafter charge, collect and receive interest in the manner and
at the rates otherwise specified in this title.
(6) In addition to the terms and conditions required by this subdivi-
sion to be included in agreements authorized by this section, the
commissioner of finance may, in his or her discretion, include in such
agreements such additional terms and conditions, not inconsistent with
this section, as such commissioner determines to be necessary in order
to properly carry out the provisions of this section. The commissioner
of finance may also adopt such rules and regulations as may be necessary
to carry out the provisions of this section.
c. (1) If, pursuant to the provisions of section 11-424 of this chap-
ter, an application for the release of property acquired by the city
through in rem tax foreclosure is made within the four-month period
specified in subdivision f of section 11-424 of this chapter, and
provided such application is made during the period specified in subdi-
vision a of this section, the following provisions of this subdivision
shall, at the election of the applicant, apply with respect to such
application and the release sought thereby.
(2) At the time of filing the application for release, an applicant
who elects to have the provisions of this subdivision apply to him or
her, shall pay to the city the amounts specified in paragraphs two,
three and four of subdivision d of section 11-424 of this chapter, for
this purpose, the amount specified in such paragraph two shall be deemed
to be the amount which would have been required to be paid thereunder
had this section not been in effect. Concurrent with the making of such
payment, the applicant shall enter into an agreement with the commis-
sioner of general services providing for the payment of all current
taxes, assessments or other legal charges on the property as they become
due or within the grace period provided by law, and, in addition,
providing for the payment of the amount specified in paragraph one of
subdivision d of section 11-424 of this chapter in installments, the
first of which shall be equal to at least twenty-five percent of such
amount and shall be payable upon the execution of such agreement. The
balance of such amount shall be payable in twelve equal quarterly
installments, each of which shall be paid quarterly on the first of
July, October, January and April.
(3) Pending approval by the corporation counsel of an application for
release as to form, timeliness and eligibility of the applicant, all
payments made pursuant to the preceding paragraph shall be held in
escrow; in the event the corporation counsel disapproves the applica-
tion, such payments shall be returned to the applicant, and the agree-
ment executed by him or her shall thereupon be cancelled.
(4) In the case of any agreement made and executed pursuant to such
paragraph two, interest on any installment due and payable thereunder
shall, notwithstanding the rates of interest prescribed in section
11-224, 11-312 or 11-313 of this title, be charged, collected and
received at the rate of seven percent per annum from April first, nine-
teen hundred seventy-eight to the date of payment of each installment.
Any interest accrued or accruing prior to April first, nineteen hundred
seventy-eight shall not be affected by the provisions of this paragraph,
but shall be charged, collected and received in the manner and at the
rates specified in section 11-224, 11-312 or 11-313 of this title. The
seven percent rate of interest specified in this paragraph shall be
applicable only if (i) there is no default in the agreement entered into
as provided in this subdivision, and (ii) all current taxes, assessments
A. 10030 341
or other legal charges are paid as they become due or within the period
of grace provided by law.
(5) No release for which application has been made pursuant to this
subdivision shall be granted until the final payment under the agreement
herein provided is received by the city. Upon receipt of such final
payment by the city the corporation counsel shall effect the release in
the manner provided in section 11-424 of this chapter. In the event of
any default in an agreement executed as provided in this subdivision or
any failure to pay current taxes, assessments or other legal charges as
they become due or within the grace period provided by law, such agree-
ment shall thereupon become void, the release process shall be termi-
nated, and all payments theretofore made shall be forfeited to the city.
(6) In addition to the terms and conditions required by this subdivi-
sion to be included in agreements authorized thereby, the commissioner
of general services may, in his or her discretion, include in such
agreements such additional terms and conditions, not inconsistent with
this subdivision, as the commissioner determines to be necessary in
order to properly carry out the provisions hereof. The commissioner of
general services may also adopt such rules and regulations as may be
necessary to carry out the provisions of this subdivision.
§ 11-427 Agreements for payment of delinquent taxes and charges in
installments. a. During the period beginning September first, nineteen
hundred seventy-eight and ending December thirty-first, nineteen hundred
seventy-eight, the commissioner of finance, or, when so specified here-
inafter, the commissioner of general services, shall be authorized and
empowered to make and execute agreements in the circumstances and
subject to the terms, conditions and limitations set forth in this
section; provided, however, that if the commissioner of finance or,
where applicable, the commissioner of general services, determines in
his or her sole discretion that good cause exists, he or she may make
and execute such agreements during an additional period ending not later
than January thirty-first, nineteen hundred seventy-nine.
b. (1) (i) Whenever it shall appear that a tax lien on a parcel has
been due and unpaid for a period of at least six months from the date on
which the tax, assessment or other legal charge represented thereby
became a lien, the commissioner of finance may enter into an agreement
with the owner of such parcel or other person claiming to have an inter-
est therein providing for the payment of such delinquent taxes, assess-
ments or other legal charges and interest and penalties in installments,
the first of which shall be equal to at least fifteen percent of such
arrears and shall be payable upon the execution of such agreement. Each
remaining installment shall be equal to at least an amount produced by
dividing the balance of such arrears by a factor determined by multiply-
ing the number of quarters of such arrears by two.
(ii) In no event, however, shall the factor referred to in subpara-
graph (i) of this paragraph be in excess of thirty-two. Each such
remaining installment shall be payable quarterly on the first of July,
October, January and April.
(2) If an agreement authorized by paragraph one of this subdivision is
executed prior to the time the commissioner of finance files in the
office of the county clerk a list of delinquent taxes covering the city
or portion of the city in which the subject parcel is located, such
parcel shall be excluded from such list of delinquent taxes, provided,
at the time such list is filed, there is no default in the agreement and
all current taxes, assessments or other legal charges were paid as they
became due or within the period of grace provided by law. In the event
A. 10030 342
of any default in the agreement or any failure to make timely payment of
any current item, the parcel shall, if then delinquent for the applica-
ble period specified in section 11-404 of this chapter, be eligible for
inclusion in any list of delinquent taxes thereafter filed.
(3) If an in rem foreclosure action has been commenced against any
parcel prior to September first, nineteen hundred seventy-eight, the
commissioner of finance may, notwithstanding the provisions of paragraph
three of subdivision a of section 11-413 of this chapter, enter into an
agreement authorized and described in the foregoing provisions of this
section with respect to such parcel. However, if such an agreement is
entered into subsequent to the last date for redemption specified in
subdivision a of section 11-407 of this chapter, there shall be paid to
the commissioner of finance at the time said agreement is executed an
amount equal to the penalty which would have been payable under subdivi-
sion c of section 11-407 of this chapter had the person executing the
agreement made a late redemption payment. Such amount shall be in addi-
tion to any installment payments required to be made under the agreement
and shall not be credited against any such installment payments. Any
parcel which is the subject of an agreement made pursuant to this para-
graph may, prior to final judgment, be withdrawn from the action,
provided there has been no default in the agreement, and provided
further that all current taxes, assessments or other legal charges are
paid when they become due or within the period of grace provided by law.
Such withdrawal shall be effected by the commissioner of finance in the
manner provided in section 11-413 of this chapter.
(4) Any person who, prior to September first, nineteen hundred seven-
ty-eight, has made, executed and filed with the commissioner of finance
an agreement pursuant to the provisions of paragraph three of subdivi-
sion a of section 11-413 of this chapter, shall be permitted to make
application to the commissioner of finance for the purpose of having
such agreement cancelled and a new agreement executed as hereinabove
provided.
If an agreement executed prior to September first, nineteen hundred
seventy-eight is not cancelled as herein provided, any installments due
and payable under such agreement on or after February first, nineteen
hundred seventy-nine shall be subject to interest at the rate specified
in paragraph six of this subdivision, but only if, as of February first,
nineteen hundred seventy-nine, there is no default in the agreement and
all current taxes, assessments or other legal charges have been paid
within the time allowed by law. Such rate of interest shall be calcu-
lated in the manner and shall be subject to all the conditions provided
in paragraph six of this subdivision.
(5) Notwithstanding the preceding paragraphs of this subdivision, no
owner of, or other person claiming to have an interest in, any parcel
shall be eligible to enter into an agreement authorized by such para-
graphs where such parcel was included in an in rem foreclosure action
but was severed therefrom pursuant to the judgment of foreclosure in
such action because an answer was still pending as to such parcel. The
commissioner of finance may, however, on notice to the corporation coun-
sel, enter into an agreement with such owner or other interested person
providing for the payment of all current taxes, assessments or other
legal charges on the parcel as they become due or within the grace peri-
od provided by law, and, in addition, providing for payment of the
amount of all delinquent taxes, assessments or other legal charges and
interest due as of the date the agreement is executed in installments,
the first of which shall be equal to at least twenty-five percent of
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such amount and shall be payable upon the execution of such agreement,
and the balance of which shall be payable in twelve equal quarterly
installments, each of which shall be paid on the first of July, October,
January and April. In addition, there shall be paid to the commissioner
of finance at the time such agreement is executed a penalty equal to
five percent of the amount of the delinquent taxes, assessments or other
legal charges and interest due as of the date of the agreement, which
penalty shall not exceed five hundred dollars. Any installments due and
payable on or after February first, nineteen hundred seventy-nine under
an agreement described in this paragraph shall be subject to interest at
the rate specified in paragraph six of this subdivision, but only if, as
of February first, nineteen hundred seventy-nine, there is no default in
the agreement and all current taxes, assessments or other legal charges
have been paid within the time allowed by law. Such rate of interest
shall be calculated in the manner and shall be subject to all the condi-
tions provided in paragraph six of this subdivision.
Upon receipt of the final payment due under an agreement executed
pursuant to this paragraph, the commissioner of finance shall discontin-
ue the in rem action pending with respect to the parcel which is the
subject of such agreement, and shall cancel the lis pendens pertaining
thereto by issuing a certificate of withdrawal pursuant to section
11-413 of this chapter. In the event of any default in such agreement or
any failure to pay current taxes, assessments or other legal charges as
they become due or within the grace period provided by law, such agree-
ment and the answer which was the basis for the severance of the subject
parcel from the in rem action shall both be deemed null and void and the
city shall be entitled to acquire title to such parcel by entry of an
appropriate supplemental judgment of foreclosure in such in rem action
without further notice to the answering party.
(6) When an agreement has been entered into pursuant to this subdivi-
sion, the commissioner of finance shall, notwithstanding the rates of
interest prescribed in section 11-224, 11-312 or 11-313 of this title,
charge, collect and receive interest on the arrears due and payable
under such agreement, to be calculated at the rate of seven percent per
annum from February first, nineteen hundred seventy-nine to the date of
payment of each installment. Any interest accrued or accruing prior to
February first, nineteen hundred seventy-nine shall not be affected by
the provisions of this paragraph, but shall be charged, collected and
received in the manner and at the rates specified in section 11-224,
11-312 or 11-313 of this title. The seven percent rate of interest spec-
ified in this paragraph shall be applicable only if (i) there is no
default in the agreement entered into as provided in this section, and
(ii) all current taxes, assessments or other legal charges are paid as
they become due or within the period of grace provided by law. In the
event of any default or failure to make timely payment of any current
item, the seven percent rate of interest specified in this paragraph
shall thereupon cease to be applicable and the commissioner of finance
shall thereafter charge, collect and receive interest in the manner and
at the rates otherwise specified in this chapter.
(7) In addition to the terms and conditions required by this subdivi-
sion to be included in agreements authorized by this section, the
commissioner of finance may, in his or her discretion, include in such
agreements such additional terms and conditions, not inconsistent with
this section, as the commissioner determines to be necessary in order to
properly carry out the provisions of this section. The commissioner may
A. 10030 344
also adopt such rules and regulations as may be necessary to carry out
the provisions of this section.
c. (1) If, pursuant to the provisions of section 11-424 of this chap-
ter, an application for the release of property acquired by the city
through in rem tax foreclosure has been filed within the four-month
period specified in subdivision f of such section, and the sixty-day
period for payment referred to in such subdivision has not expired prior
to the commencement of the period specified in subdivision a of this
section, the provisions of this subdivision shall, at the election of
the applicant, apply with respect to such application and the release
sought thereby, provided notice of such election is given to the commis-
sioner of general services during the period specified in subdivision a
of this section, but in no event later than the last day of the sixty-
day period referred to in subdivision f of section 11-424 of this chap-
ter.
(2) An applicant who elects to have the provisions of this subdivision
apply to him or her, shall, at the time such applicant notifies the
commissioner of general services of his or her election, pay to the city
the amounts specified in paragraphs two, three and four of subdivision d
of section 11-424 of this chapter; for this purpose, the amount speci-
fied in paragraph two thereof shall be deemed to be the amount which
would have been required to be paid thereunder had this section not been
in effect. Concurrent with the making of such payment, the applicant
shall enter into an agreement with the commissioner of general services
providing for the payment of all current taxes, assessments or other
legal charges on the property as they become due or within the grace
period provided by law, and, in addition, providing for the payment of
the amount specified in paragraph one of subdivision d of section 11-424
of this chapter in installments, the first of which shall be equal to at
least twenty-five percent of such amount and shall be payable upon the
execution of such agreement. The balance of such amount shall be payable
in twelve equal quarterly installments, each of which shall be paid
quarterly on the first of July, October, January and April.
(3) Pending approval by the corporation counsel of an application for
release as to form, timeliness and eligibility of the applicant, all
payments made pursuant to paragraph three of this subdivision shall be
held in escrow; in the event the corporation counsel disapproves the
application, such payments shall be returned to the applicant, and the
agreement executed by him or her shall thereupon be cancelled.
(4) In the case of any agreement made and executed pursuant to para-
graph two of this subdivision, interest on any installment due and paya-
ble thereunder shall, notwithstanding the rates of interest prescribed
in section 11-224, 11-312 or 11-313 of this title, be charged, collected
and received at the rate of seven percent per annum from February first,
nineteen hundred seventy-nine to the date of payment of each install-
ment. Any interest accrued or accruing prior to February first, nineteen
hundred seventy-nine shall not be affected by the provisions of this
paragraph, but shall be charged, collected and received in the manner
and at the rates specified in section 11-224, 11-312 or 11-313 of this
title. The seven percent rate of interest specified in this paragraph
shall be applicable only if (i) there is no default in the agreement
entered into as provided in this subdivision, and (ii) all current
taxes, assessments or other legal charges are paid as they become due or
within the period of grace provided by law.
(5) No release for which application has been made pursuant to subdi-
vision f of section 11-424 of this chapter shall be granted until the
A. 10030 345
final payment under the agreement herein provided is received by the
city. Upon receipt of such final payment by the city the corporation
counsel shall effect the release in the manner provided in section
11-424 of this chapter. In the event of any default in an agreement
executed as provided in this subdivision or any failure to pay current
taxes, assessments or other legal charges as they become due or within
the grace period provided by law, such agreement shall thereupon become
void, the release process shall be terminated and all payments thereto-
fore made shall be forfeited to the city.
(6) In addition to the terms and conditions required by this subdivi-
sion to be included in agreements authorized thereby, the commissioner
of general services may, in his or her discretion, include in such
agreements such additional terms and conditions, not inconsistent with
this subdivision, as the commissioner determines to be necessary in
order to properly carry out the provisions hereof. The commissioner of
general services may also adopt such rules and regulations as may be
necessary to carry out the provisions of this subdivision.
§ 11-428 Disposition of proceeds of sales of properties acquired by
city through tax enforcement foreclosure proceedings. The proceeds of
the sale of real property acquired through tax enforcement foreclosure
proceedings, or by deed in lieu thereof, including subsequent receipts
in diminution of purchase money mortgages accepted at the time of sale,
shall be applied as follows:
a. The amount of the unpaid real estate taxes accrued against such
property from the first of January or the first of July, whichever first
immediately precedes the date on which title vested in the city to the
date of conveyance of title by the city, without interest or penalties
thereon, shall be credited to the tax deficiency account.
b. The balance, if any, remaining after deduction of the amount speci-
fied in paragraph a hereof, shall be paid into the funds hereinafter
specified in the following order:
1. A sum equal to the amount of the unpaid assessments for local
improvements accrued against such property at the date of commencement
of the foreclosure proceeding and up to the date of conveyance of title
by the city, without interest or penalties thereon, shall be paid into
the appropriate assessment funds.
2. A sum equal to the amount of unpaid sewer rents, including interest
and penalties thereon, accrued against such property at the date of
commencement of the foreclosure proceedings and up to the date of
conveyance of title by the city shall be paid into the sewer fund.
3. The amount of the brokerage fee and other expenses expended by the
city in connection with such sale shall be paid into the fund or code to
which such fee was charged.
4. The balance of such proceeds, if any, and the interest on any
purchase money mortgage accepted by the city at the time of such sale
shall be paid into the general fund. In the event that any part of such
balance is represented by bonds and mortgages, such bonds and mortgages
may be deposited in the tax appropriation and general fund stabilization
reserve fund and a sum equal to the amount of the cash represented by
such bonds and mortgages shall in such event be transferred from the tax
appropriation and general fund stabilization reserve fund to the general
fund.
CHAPTER 5
CITY UNINCORPORATED BUSINESS INCOME TAX
A. 10030 346
§ 11-501 Meaning of terms. (a) General. Unless a different meaning is
clearly required, any term used in this chapter shall have the same
meaning as when used in a comparable context in the laws of the United
States relating to federal income taxes, and any reference in this chap-
ter to the laws of the United States shall mean the provisions of the
internal revenue code of nineteen hundred fifty-four, and amendments
thereto, and other provisions of the laws of the United States relating
to federal income taxes, as the same are included in this chapter as an
appendix or as included by reference to an appendix of another chapter
enacted by the same law as enacts this chapter. (The quotation of the
aforesaid laws of the United States is intended to make them a part of
this chapter and to avoid constitutional uncertainties which might
result if such laws were merely incorporated by reference. The quotation
of a provision of the federal internal revenue code or of any other law
of the United States shall not necessarily mean that it is applicable to
or has relevance to this chapter.)
(b) "State", "this state" or "the state" when used in this chapter
shall mean the state of New York.
(c) "Local income taxes", when used in this chapter shall mean an
income tax imposed by a political subdivision of a state.
(d) "Commissioner of finance" when used in this chapter shall mean the
commissioner of finance of the city.
(e) "Department of finance" when used in this chapter shall mean the
department of finance of the city.
(f) "Tax appeals tribunal" when used in this chapter shall mean the
tax appeals tribunal established by section one hundred sixty-eight of
the charter of the preceding municipality as it existed January first,
two thousand nine.
(g) "Unincorporated business entire net income" when used in this
chapter shall mean the excess of the unincorporated business gross
income of an unincorporated business over its unincorporated business
deductions.
(h) "Investment capital" when used in this chapter shall mean invest-
ments of the unincorporated business in stocks, bonds and other securi-
ties, corporate and governmental (excluding governmental stocks, bonds
and other securities the interest or dividends from which are fully
exempt from tax under this chapter, other than any such governmental
stock, bond or other security which is sold or otherwise disposed of
during the taxable year in a transaction which results in a gain or loss
which is included in computing unincorporated business entire net income
for the taxable year), not held for sale to customers in the regular
course of business, provided, however, that in the discretion of the
commissioner of finance, there shall be deducted from investment capital
any liabilities of the unincorporated business which are directly or
indirectly attributable to investment capital.
(i) "Investment income" when used in this chapter shall mean income,
gains and losses from investment capital, to the extent included in
computing unincorporated business entire net income, less, in the
discretion of the commissioner of finance, any deductions allowable in
computing unincorporated business entire net income which are directly
or indirectly attributable to investment capital or investment income,
provided, however, that in no case shall investment income exceed unin-
corporated business entire net income.
(j) "Business capital" when used in this chapter shall mean all assets
of the unincorporated business other than investment capital, less
liabilities of the unincorporated business not deducted from investment
A. 10030 347
capital, except that cash on hand and on deposit shall be treated as
investment capital or as business capital as the taxpayer may elect.
(k) "Business income" when used in this chapter shall mean unincorpo-
rated business entire net income minus investment income.
(l) "Dealer" when used in this chapter shall mean an individual or
unincorporated entity that (A) holds or disposes of property that is
stock in trade of the taxpayer, inventory or is otherwise held for sale
to customers in the ordinary course of the taxpayer's trade or business,
or (B) regularly offers to enter into, assume, offset, assign or other-
wise terminate positions in property with customers in the ordinary
course of the taxpayer's trade or business, provided, however, an indi-
vidual or unincorporated entity shall not be treated as a dealer based
solely on such individual's or entity's ownership of an interest in an
entity that is a dealer, and provided, further, that an unincorporated
entity shall not be treated as a dealer based solely on the ownership by
a dealer of an interest in that unincorporated entity.
(m) "Unincorporated entity" when used in this chapter shall include an
entity classified as a partnership for federal income tax purposes
regardless of whether the entity is formed as a corporation, joint-stock
company, joint-stock association, body corporate or body politic or
whether the entity is organized under a federal or state statute, or
under a statute of a federally recognized Indian tribe, or under a stat-
ute of a country other than the United States that describes or refers
to the entity as incorporated.
§ 11-502 Unincorporated business defined. (a) General. An unincorpo-
rated business means any trade, business, profession or occupation
conducted, engaged in or being liquidated by an individual or unincorpo-
rated entity, including a partnership, a fiduciary, a corporation in
liquidation or an unincorporated entity that has made the election
permitted under paragraph (b) of subdivision one of section 11-602 of
this title (but only for the period during which such election is in
effect), but not including any entity subject to tax under chapter six
of this title and not including any entity doing an insurance business
as a member of the New York insurance exchange described in paragraph
one of subsection (b) of section six thousand two hundred one of the
insurance law. Unincorporated businesses subject to tax under a local
law of the city imposing a tax on utilities shall not be subject to tax
under this chapter; provided, however, that unincorporated businesses,
other than (1) utility businesses subject to the supervision of the
state department of public service and (2) for taxable years beginning
on or after August first, two thousand two, utilities as defined in
subdivision six of section 11-1101 of this title, which are subject to
tax under a local law of the city imposing a tax on vendors of utility
services shall be subject to tax under this chapter on that percentage
of their entire net income allocable to the city under section 11-508 of
this chapter which their receipts other than those taxable under such
local law taxing vendors of utility services is of their total receipts.
If an individual or an unincorporated entity carries on wholly or partly
in the city two or more unincorporated businesses, all such businesses
shall be treated as one unincorporated business for the purposes of this
chapter. For purposes of this chapter, an unincorporated entity shall be
treated as carrying on any trade, business, profession or occupation
carried on in whole or in part in the city by any other unincorporated
entity in which the first unincorporated entity owns an interest, and
the ownership by an unincorporated entity of an interest in another
unincorporated entity that is not carrying on any trade, business,
A. 10030 348
profession, or occupation in whole or in part in the city shall not be
deemed the conduct of an unincorporated business by the first unincorpo-
rated entity. Notwithstanding anything to the contrary in the preceding
sentence, for taxable years beginning on or after August first, two
thousand two, an unincorporated business that is a partner in a partner-
ship subject to tax under a local law of the city imposing a tax on
utilities, as defined in subdivision six of section 11-1101 of this
title, shall not be considered to be carrying on the trade, business,
profession or occupation carried on by such partnership.
(b) Services as employee. The performance of services by an individual
as an employee or as an officer or director of a corporation, society,
association, or political entity, or as a fiduciary, shall not be deemed
an unincorporated business, unless such services constitute part of a
business regularly carried on by such individual.
(c) Purchase and sale for own account. (1) Definitions. (A) Property.
For purposes of this subdivision, property shall mean real and personal
property, including but not limited to, property qualifying as invest-
ment capital within the meaning of subdivision (h) of section 11-501 of
this chapter, other stocks, notes, bonds, debentures, or other evidences
of indebtedness, interest rate, currency, or equity notional principal
contracts, foreign currencies, interests in, or derivative financial
instruments (including options, forward or futures contracts, short
positions, and similar financial instruments) in any property described
above, and any commodity traded on or subject to the rules of a board of
trade or commodity exchange, provided, however, property shall not
include: (i) debt instruments issued by the taxpayer; (ii) accounts
receivable held by a factor; (iii) property held as stock in trade,
inventory or otherwise held for sale to customers in the ordinary course
of the taxpayer's trade or business; (iv) debt instruments acquired in
the ordinary course of the taxpayer's trade or business for funds
loaned, services rendered or for the sale, rental or other transfer of
property by the taxpayer; (v) interests in unincorporated entities; or
(vi) positions in property described above entered into, assumed,
offset, assigned or terminated by a dealer with respect to such posi-
tions in property.
(B) Investor. For purposes of this subdivision, a taxpayer shall be
treated as acquiring, holding or disposing of an interest in an unincor-
porated entity as an investor if: (i) the unincorporated entity meets
the requirements of subparagraph (B) of paragraph four of this subdivi-
sion and the taxpayer does not receive a distributive share of such
entity's income, gain, loss, deduction, credit and basis from a business
carried on in whole or in part in the city that is materially greater
than its distributive share of any other item of income, gain, loss
deduction, credit or basis of such entity; or (ii) with respect to any
other unincorporated entity, the taxpayer is neither a general partner
nor authorized under the entity's governing instrument to manage or
participate in, nor managing, nor participating in, the day-to-day busi-
ness of the unincorporated entity.
(2) An individual or other unincorporated entity, except a dealer as
defined in subdivision (1) of section 11-501 of this chapter, shall not
be deemed engaged in an unincorporated business solely by reason of (A)
the purchase, holding and sale for his, her or its own account of prop-
erty, as defined in paragraph one of this subdivision, or the entry
into, assumption, offset, assignment, or other termination of a position
in any property so defined, or both, (B) the acquisition, holding or
disposition, other than in the ordinary course of a trade or business,
A. 10030 349
of interests in unincorporated entities engaged solely in activities
described in subparagraph (A), (B) or (C) of this paragraph, or (C) any
combination of the activities described in subparagraphs (A) and (B) of
this paragraph and any other activity not otherwise constituting the
conduct of an unincorporated business subject to the tax imposed by this
chapter, but this paragraph shall not apply if the unincorporated entity
is taxable as a corporation for federal income tax purposes.
(3) Notwithstanding anything to the contrary, the receipt by an indi-
vidual or other unincorporated entity of twenty-five thousand dollars or
less of gross receipts during the taxable year (determined without
regard to any deductions) from an unincorporated business wholly or
partly carried on within the city by such individual or unincorporated
entity shall not cause such individual or other unincorporated entity to
be treated as not engaged solely in the activities described in subpara-
graph (A), (B) or (C) of paragraph two of this subdivision.
(4) (A) If a taxpayer that is an unincorporated entity is primarily
engaged in (i) activities described in subparagraph (A), (B) or (C) of
paragraph two of this subdivision, or (ii) the acquisition, holding or
disposition, other than in the ordinary course of a trade or business,
of interests as an investor in unincorporated entities carrying on any
unincorporated business in whole or in part in the city, or both, the
activities described in subparagraph (A), (B), or (C) of paragraph two
of this subdivision carried on by the taxpayer or by any unincorporated
entity primarily engaged in the activities described in clause (i) or
(ii) of this subparagraph in which the taxpayer owns an interest shall
not be deemed an unincorporated business carried on by the taxpayer.
(B) For purposes of subparagraph (A) of this paragraph, an unincorpo-
rated entity will be treated as primarily engaged in activities
described in clause (i) or (ii) of subparagraph (A) of this paragraph,
or both, if at least ninety percent of the value of its total assets is
represented by assets described in subparagraph (C) of this paragraph.
(C) For purposes of subparagraph (B) of this paragraph, assets
described in this subparagraph include:
(i) property as defined in paragraph one of this subdivision;
(ii) interests in unincorporated entities not carrying on any unincor-
porated business in whole or in part in the city; and
(iii) interests in unincorporated entities carrying on an unincorpo-
rated business in whole or in part in the city held by the taxpayer as
an investor, as defined in paragraph one of this subdivision.
(D) For purposes of determining whether a taxpayer meets the require-
ments of subparagraph (B) of this paragraph, the value of assets
described in subparagraph (C) of this paragraph shall be the average
monthly gross value of the assets of the taxpayer. For purposes of this
paragraph, the value of assets of the taxpayer that consist of real
property or marketable securities shall be the fair market value thereof
and the value of assets other than real property or marketable securi-
ties shall be the value thereof shown on the books and records of the
taxpayer in accordance with generally accepted accounting principles. In
case it shall appear to the commissioner of finance that the use of
gross value in determining whether the requirements of subparagraph (B)
of this paragraph are met, improperly or inaccurately reflects the
taxpayer's primary activities, the commissioner of finance is authorized
in his or her discretion and in such manner as he or she may determine,
to reduce the gross value of the taxpayer's assets by liabilities
attributable thereto or to eliminate assets, so as to properly and accu-
rately reflect the taxpayer's primary activities.
A. 10030 350
(d) Holding, leasing or managing real property. An owner of real prop-
erty, a lessee or a fiduciary shall not be deemed engaged in an unincor-
porated business solely by reason of holding, leasing or managing real
property. If an owner of real property or lessee or fiduciary (except a
dealer holding real property primarily for sale to customers in the
ordinary course of his or her trade or business) who is holding, leasing
or managing real property is also carrying on an unincorporated business
in whole or in part in the city, whether or not such unincorporated
business is carried on at or is connected with such real property, such
holding, leasing or managing of real property shall not be deemed an
unincorporated business if, and only to the extent that, such real prop-
erty is held, leased or managed for the purpose of producing rental
income from such real property or gain upon the sale or other disposi-
tion of such real property. For purposes of this subdivision, the
conduct by such owner, lessee or fiduciary, at such real property, of a
trade, business, profession or occupation, including, but not limited
to, a garage, restaurant, laundry or health club, shall be deemed to be
an incident to the holding, leasing or managing of such real property,
and shall not be deemed the conduct of an unincorporated business, if
such trade, business, profession or occupation is conducted solely for
the benefit of tenants at such real property, as an incidental service
to such tenants, and is not open or available to the general public,
provided, however, if any such owner, lessee or fiduciary operates a
garage, parking lot or other similar facility at such real property that
is open or available to the general public, the provision by any such
owner, lessee or fiduciary of the service of parking, garaging or stor-
ing of motor vehicles on a monthly or longer term basis shall be deemed
to be an incident to the holding, leasing or managing of such real prop-
erty, and shall not be deemed the conduct of an unincorporated business
if, and only to the extent that, such monthly or longer term parking,
garaging or storing service is provided to tenants at such real property
as an incidental service to such tenants. If an owner, lessee or fiduci-
ary holding, leasing or managing real property operates at such real
property a garage, parking lot or other similar facility that is open or
available to the public, each such owner, lessee or fiduciary shall
file, together with and as a part of the returns required under section
11-514 of this chapter, a report or schedule for each such garage, park-
ing lot or other similar facility, or in the discretion of the commis-
sioner, make a separate entry on such returns, identifying the specific
location and address, license number and licensed capacity of each such
garage, parking lot or other similar facility, and shall include such
additional information, data and other matters relating to the provision
of such monthly or longer term parking, garaging or storing service to
tenants as shall be prescribed by the commissioner of finance. If the
separate information required to be reported by any owner, lessee or
fiduciary holding, leasing or managing real property for any garage,
parking lot or other similar facility at such real property that is open
or available to the public is not contained in the returns required
under section 11-514 of this chapter, or in any amended returns, in any
material respect, the provision of parking, garaging or storing service
to tenants at such real property shall be deemed the conduct of an unin-
corporated business and not incident to the holding, leasing or managing
of such real property.
(e) Sales representative. An individual, other than one who maintains
an office or who employs one or more assistants or who otherwise regu-
larly carries on a business, shall not be deemed engaged in an unincor-
A. 10030 351
porated business solely by reason of selling goods, wares, merchandise
or insurance for more than one enterprise. For purposes of this subdi-
vision, space utilized solely for the display of merchandise and/or for
the maintenance and storage of records normally used in the course of
business shall not be deemed an office, and the employment of clerical
and secretarial assistance shall not be deemed the employment of assist-
ants.
(f) Exempt trusts and organizations. A trust or other unincorporated
organization which by reason of its purposes or activities is exempt
from federal income tax shall not be deemed an unincorporated business
regardless of whether subject to federal income tax on unrelated busi-
ness taxable income.
§ 11-503 Imposition of tax. (a) General. A tax at the rate of four
percent is hereby imposed for each taxable year, beginning with taxable
years ending after January first, nineteen hundred sixty-six, on the
unincorporated business taxable income of every unincorporated business
wholly or partly carried on within the city. This tax shall be in addi-
tion to any other taxes imposed.
(b) Credit against tax. (1) For each taxable year beginning after
nineteen hundred eighty-six but before nineteen hundred ninety-six:
(A) if the tax computed under subdivision (a) of this section is six
hundred dollars or less, a credit shall be allowed for the entire amount
of such tax;
(B) if the tax computed under subdivision (a) of this section exceeds
six hundred dollars but is less than eight hundred dollars, a credit
shall be allowed in the amount determined by multiplying such tax by a
fraction the numerator of which is eight hundred dollars minus the
amount of such tax and the denominator of which is two hundred dollars;
or
(C) if the tax computed under subdivision (a) of this section is eight
hundred dollars or more, no credit shall be allowed.
(2) For each taxable year beginning in nineteen hundred ninety-six:
(A) if the tax computed under subdivision (a) of this section is eight
hundred dollars or less, a credit shall be allowed for the entire amount
of such tax;
(B) if the tax computed under subdivision (a) of this section exceeds
eight hundred dollars but is less than one thousand dollars, a credit
shall be allowed in the amount determined by multiplying such tax by a
fraction the numerator of which is one thousand dollars minus the amount
of such tax and the denominator of which is two hundred dollars; or
(C) if the tax computed under subdivision (a) of this section is one
thousand dollars or more, no credit shall be allowed.
(3) For each taxable year beginning after nineteen hundred ninety-six
but before two thousand nine:
(A) if the tax computed under subdivision (a) of this section is one
thousand eight hundred dollars or less, a credit shall be allowed for
the entire amount of such tax;
(B) if the tax computed under subdivision (a) of this section exceeds
one thousand eight hundred dollars but is less than three thousand two
hundred dollars, a credit shall be allowed in the amount determined by
multiplying such tax by a fraction the numerator of which is three thou-
sand two hundred dollars minus the amount of such tax and the denomina-
tor of which is one thousand four hundred dollars; or
(C) if the tax computed under subdivision (a) of this section is three
thousand two hundred dollars or more, no credit shall be allowed.
(3-a) For each taxable year beginning after two thousand eight:
A. 10030 352
(A) if the tax computed under subdivision (a) of this section is three
thousand four hundred dollars or less, a credit shall be allowed for the
entire amount of such tax;
(B) if the tax computed under subdivision (a) of this section exceeds
three thousand four hundred dollars but is less than five thousand four
hundred dollars, a credit shall be allowed in the amount determined by
multiplying such tax by a fraction the numerator of which is five thou-
sand four hundred dollars minus the amount of such tax and the denomina-
tor of which is two thousand dollars; or
(C) if the tax computed under subdivision (a) of this section is five
thousand four hundred dollars or more, no credit shall be allowed.
(4) If separate partnerships, joint ventures or other unincorporated
entities have substantially the same partners or members, each of such
partners or members has substantially the same interest in each of such
partnerships, joint ventures or other unincorporated entities, and such
partnerships, joint ventures or other unincorporated entities are
engaged in substantially the same business or businesses or in substan-
tially related businesses, all of such partnerships, joint ventures or
other unincorporated entities shall be treated as one unincorporated
business for purposes of this subdivision. The provisions of this para-
graph shall not be construed to limit or affect the meaning or applica-
tion of any other provision of this chapter.
(5) Notwithstanding anything to the contrary, the credit allowable
under this subdivision shall be taken prior to any other credit allowed
by this section.
(c) Credit relating to stock transfer tax. (1) In addition to any
other credit permitted under this section, a taxpayer shall be allowed a
credit, to be credited or refunded in the manner hereinafter provided in
this subdivision, against the tax imposed by this chapter after the
allowance of any other credit under this section. The amount of such
credit shall be fifty percent of the tax incurred in market making tran-
sactions under the provisions of article twelve of the tax law on such
transactions subject to such tax occurring on and after August first,
nineteen hundred seventy-six and paid by such taxpayer, except when such
tax shall have been paid pursuant to section two hundred seventy-nine-a
of the tax law.
(2) For purposes of this subdivision:
a. the term "taxpayer" shall mean any unincorporated business subject
to tax under this chapter registered with the United States securities
and exchange commission in accordance with subsection (b) of section
fifteen of the securities exchange act of nineteen hundred thirty-four,
as amended, and acting as a dealer in a transaction described in subpar-
agraph b of this paragraph, and
b. the term "market making transaction" shall mean any transaction
involving a sale, including a short sale, by a dealer of shares or
certificates subject to the tax imposed by article twelve of the tax
law, provided such shares or certificates are sold:
(i) as stock in trade or inventory or as property held for sale in the
ordinary course of such dealer's trade or business including transfers
which are part of an underwriting,
(ii) in (a) a bona fide arbitrage transaction; (b) a bona fide hedge
transaction involving a long or short position in any equity security
and a long or short position in a security entitling the holder to
acquire or sell such equity security; or (c) a risk arbitrage trans-
action in connection with a merger, acquisition, tender offer, recap-
italization, reorganization, or similar transaction, or
A. 10030 353
(iii) to offset a transaction made in error.
Provided, however, that, except as to subclause (c) of clause (ii) of
subparagraph b of this paragraph, the term "market making transaction"
shall not include any sale of shares or certificates identified in such
dealer's records as a security held for investment within the meaning of
section twelve hundred thirty-six of the internal revenue code.
(3) The credit allowed under this subdivision for any taxable year
shall be deemed to be an overpayment of tax by the taxpayer to be cred-
ited or refunded in accordance with the provisions of section 11-526 of
this chapter, except as otherwise provided in subdivision (g) of
sections 11-512 and 11-514 of this chapter; provided, however, that the
provisions of this chapter notwithstanding, the amount to be refunded
pursuant to this subdivision shall not be paid prior to the first day of
the eighth month following the close of the taxable year, and the
provisions of subdivision (c) of section 11-528 of this chapter notwith-
standing, interest shall be allowed and paid on the overpayment of the
credit under this subdivision from the first day of the eleventh month
following the close of the taxable year, or three months after a claim
for the credit or refund provided for in this subdivision has been
filed, whichever is later.
(4) Provided, however, that the credit provided under this subdivi-
sion shall be allowed only to the extent that the amount of credit
allowable with respect to market making transactions under the
provisions of this subdivision (determined without regard to the
provisions of this paragraph) exceeds fifty percent of all rebates
(provided for under the provisions of section two hundred eighty-a of
article twelve of the tax law) allowed for such taxes incurred in the
same market making transactions with respect to which the credit is
determined. No credit shall be allowed under this subdivision with
respect to any tax incurred in market making transactions occurring on
or after October first, nineteen hundred eighty-one.
(d) Credit relating to certain sales and compensating use taxes. (1)
In addition to the credits allowed by subdivisions (b) and (c) of this
section, a taxpayer shall be allowed a credit against the tax imposed by
this chapter to be credited or refunded in the manner hereinafter
provided in this section. The amount of such credit shall be the excess
of (A) the amount of sales and compensating use taxes imposed by section
eleven hundred seven of the tax law during the taxpayer's taxable year
which became legally due on or after and was paid on or after July
first, nineteen hundred seventy-seven, less any credit or refund of such
taxes, with respect to the purchase or use by the taxpayer of machinery
or equipment for use or consumption directly and predominantly in the
production of tangible personal property, gas, electricity, refriger-
ation or steam for sale, by manufacturing, processing, generating,
assembling, refining, mining or extracting, or telephone central office
equipment or station apparatus or comparable telegraph equipment for use
directly and predominantly in receiving at destination or initiating and
switching telephone or telegraph communication, but not including parts
with a useful life of one year or less or tools or supplies used in
connection with such machinery, equipment or apparatus over (B) the
amount of any credit for such sales and compensating use taxes allowed
or allowable against the taxes imposed by subchapter two of chapter six
of this title, for any periods embraced within the taxable year of the
taxpayer under this chapter.
(2) The credit allowed under this section for any taxable year shall
be deemed to be an overpayment of tax by the taxpayer to be credited or
A. 10030 354
refunded, without interest, in accordance with the provisions of section
11-526 of this chapter.
(3) Where the taxpayer receives a refund or credit of any tax imposed
under section eleven hundred seven of the tax law for which the taxpayer
had claimed a credit under the provisions of this section in a prior
taxable year, the amount of such tax refund or credit shall be added to
the tax imposed by this section, and such amount shall be subtracted in
computing unincorporated business taxable income for the taxable year.
(e) Credit relating to the annual increase in certain payments to a
landlord by a taxpayer relocating industrial and commercial employment
opportunities. (1) In addition to any other credit allowed by this
section, a taxpayer shall be allowed a credit against the tax imposed by
this chapter to be credited or refunded, without interest, in the manner
hereinafter provided in this section.
(A) Where a taxpayer shall have relocated to the city from a location
outside the state, and by such relocation shall have created a minimum
of one hundred industrial or commercial employment opportunities, and
where such taxpayer shall have entered into a written lease for the
relocation premises, the terms of which lease provide for increased
additional payments to the landlord which are based solely and directly
upon any increase or addition in real estate taxes imposed on the leased
premises, the taxpayer upon approval and certification by the industrial
and commercial incentive board as hereinafter provided shall be entitled
to a credit against the tax imposed by this chapter. The amount of such
credit shall be: An amount equal to the annual increased payments actu-
ally made by the taxpayer to the landlord which are solely and directly
attributable to an increase or addition to the real estate tax imposed
upon the leased premises. Such credit shall be allowed only to the
extent that the taxpayer has not otherwise claimed said amount as a
deduction against the tax imposed by this chapter.
The industrial and commercial incentive board in approving and certi-
fying to the qualifications of the taxpayer to receive the tax credit
provided for herein shall first determine that the applicant has met the
requirements of this section, and further, that the granting of the tax
credit to the applicant is in the "public interest." In determining
that the granting of the tax credit is in the public interest, the board
shall make affirmative findings that: the granting of the tax credit to
the applicant will not effect an undue hardship on similar taxpayers
already located within the city; the existence of this tax incentive has
been instrumental in bringing about the relocation of the applicant to
the city; and the granting of the tax credit will foster the economic
recovery and economic development of the city.
The tax credit, if approved and certified by the industrial and
commercial incentive board, must be utilized annually by the taxpayer
for the length of the term of the lease or for a period not to exceed
ten years from the date of relocation, whichever period is shorter.
(B) Definitions: When used in this section, "Employment opportunity"
means the creation of a full time position of gainful employment for an
industrial or commercial employee and the actual hiring of such employee
for the said position.
"Industrial employee" means one engaged in the manufacture or assembl-
ing of tangible goods or the processing of raw materials.
"Commercial employee" means one engaged in the buying, selling or
otherwise providing of goods or services other than on a retail basis.
"Retail" means the selling or otherwise disposing or furnishing of
tangible goods or services directly to the ultimate user or consumer.
A. 10030 355
"Full time position" means the hiring of an industrial or commercial
employee in a position of gainful employment where the number of hours
worked by such employee is not less than thirty hours during any given
week.
"Industrial and commercial incentive board" means the board created
pursuant to subchapter two of chapter two of this title.
(2) The credit allowed under this section for any taxable year shall
be deemed to be an overpayment of tax by the taxpayer to be credited or
refunded, without interest, in accordance with the provisions of section
11-526 of this chapter.
(f) Credit relating to certain expenses involved in the cost of relo-
cating industrial and commercial employment opportunities. (1) In
addition to any other credit allowed by this section, a taxpayer shall
be allowed a credit against the tax imposed by this chapter to be cred-
ited or refunded in the manner hereinafter provided in this section.
The amount of such credit shall be:
(A) A maximum of three hundred dollars for each commercial employment
and a maximum of five hundred dollars for each industrial employment
opportunity relocated to the city from an area outside the state. Such
credit shall be allowed to a taxpayer who relocates a minimum of ten
employment opportunities. The credit shall be allowed against employment
opportunity relocation costs incurred by the taxpayer. Such credit shall
be allowed only to the extent that the taxpayer has not claimed a
deduction for allowable employment opportunity relocation costs. The
credit allowed hereunder may be taken by the taxpayer in whole or in
part in the year in which the employment opportunity is relocated by
such taxpayer or either of the two years succeeding such event;
provided, however, that no credit shall be allowed under this subdivi-
sion to a taxpayer for industrial employment opportunities relocated to
premises (i) that are within an industrial business zone established
pursuant to section 22-626 of the code of the preceding municipality and
(ii) for which a binding contract to purchase or lease was first entered
into by the taxpayer on or after July first, two thousand five.
The commissioner of finance is empowered to promulgate rules and regu-
lations and to prescribe the form of application to be used.
(B) Definitions: When used in this section, "Employment Opportunity"
means the creation of a full time position of gainful employment for an
industrial or commercial employee and the actual hiring of such employee
for the said position.
"Industrial Employee" means one engaged in the manufacture or assembl-
ing of tangible goods or the processing of raw materials.
"Commercial Employee" means one engaged in the buying, selling or
otherwise providing of goods or services other than on a retail basis.
"Retail" means the selling or otherwise disposing of tangible goods
directly to the ultimate user or consumer.
"Full Time Position" means the hiring of an industrial or commercial
employee in a position of gainful employment where the number of hours
worked by such employee is not less than thirty hours during any given
work week.
"Employment Opportunity Relocation Costs" means the costs incurred by
the taxpayer in moving furniture, files, papers and office equipment
into the city from a location outside the state; the costs incurred by
the taxpayer in the moving from a location outside the state; the costs
of installation of telephones and other communications equipment
required as a result of the relocation to the city from a location
outside the state; the cost incurred in the purchase of office furniture
A. 10030 356
and fixtures required as a result of the relocation to the city from a
location outside the state; and the cost of renovation of the premises
to be occupied as a result of the relocation provided, however, that
such renovation costs shall be allowable only to the extent that they do
not exceed seventy-five cents per square foot of the total area utilized
by the taxpayer in the occupied premises.
(2) The credit allowed under this section for any taxable year shall
be deemed to be an overpayment of tax by the taxpayer to be credited or
refunded without interest, in accordance with the provisions of section
11-526 of this chapter.
(i) Relocation and employment assistance credit. (1) In addition to
any other credit allowed by this section, a taxpayer that has obtained
the certifications required by chapter six-B of title twenty-two of the
code of the preceding municipality shall be allowed a credit against the
tax imposed by this chapter. The amount of the credit shall be the
amount determined by multiplying five hundred dollars or, in the case of
a taxpayer that has obtained pursuant to chapter six-B of such title
twenty-two a certification of eligibility dated on or after July first,
nineteen hundred ninety-five, one thousand dollars or, in the case of an
eligible business that has obtained pursuant to chapter six-B of such
title twenty-two a certification of eligibility dated on or after July
first, two thousand, for a relocation to eligible premises located with-
in a revitalization area defined in subdivision (n) of section 22-621 of
the code of the preceding municipality, three thousand dollars, by the
number of eligible aggregate employment shares maintained by the taxpay-
er during the taxable year with respect to particular premises to which
the taxpayer has relocated; provided, however, with respect to a relo-
cation for which no application for a certificate of eligibility is
submitted prior to July first, two thousand three, to eligible premises
that are not within a revitalization area, if the date of such relo-
cation as determined pursuant to subdivision (j) of section 22-621 of
the code of the preceding municipality is before July first, nineteen
hundred ninety-five, the amount to be multiplied by the number of eligi-
ble aggregate employment shares shall be five hundred dollars, and with
respect to a relocation for which no application for a certificate of
eligibility is submitted prior to July first, two thousand three, to
eligible premises that are within a revitalization area, if the date of
such relocation as determined pursuant to subdivision (j) of such
section is before July first, nineteen hundred ninety-five, the amount
to be multiplied by the number of eligible aggregate employment shares
shall be five hundred dollars, and if the date of such relocation as
determined pursuant to subdivision (j) of such section is on or after
July first, nineteen hundred ninety-five, and before July first, two
thousand, one thousand dollars; provided, however, that no credit shall
be allowed for the relocation of any retail activity or hotel services;
provided, further, that no credit shall be allowed under this subdivi-
sion to any taxpayer that has elected pursuant to subdivision (d) of
section 22-622 of the code of the preceding municipality to take such
credit against a gross receipts tax imposed under chapter eleven of this
title; and provided that in the case of an eligible business that has
obtained pursuant to chapter six-B of such title twenty-two certif-
ications of eligibility for more than one relocation, the portion of the
total amount of eligible aggregate employment shares to be multiplied by
the dollar amount specified in this paragraph for each such certif-
ication of a relocation shall be the number of total attributed eligible
aggregate employment shares determined with respect to such relocation
A. 10030 357
pursuant to subdivision (o) of section 22-621 of the code of the preced-
ing municipality. For purposes of this subdivision, the terms "eligible
aggregate employment shares," "relocate," "retail activity" and "hotel
services" shall have the meanings ascribed by section 22-621 of the code
of the preceding municipality.
(2) The credit allowed under this subdivision with respect to eligible
aggregate employment shares maintained with respect to particular prem-
ises to which the taxpayer has relocated shall be allowed for the first
taxable year during which such eligible aggregate employment shares are
maintained with respect to such premises and for any of the twelve
succeeding taxable years during which eligible aggregate employment
shares are maintained with respect to such premises; provided that the
credit allowed for the twelfth succeeding taxable year shall be calcu-
lated by multiplying the number of eligible aggregate employment shares
maintained with respect to such premises in the twelfth succeeding taxa-
ble year by the lesser of one and a fraction the numerator of which is
such number of days in the taxable year of relocation less the number of
days the eligible business maintained employment shares in the eligible
premises in the taxable year of relocation and the denominator of which
is the number of days in such twelfth succeeding taxable year during
which such eligible aggregate employment shares are maintained with
respect to such premises. Except as provided in paragraph four of this
subdivision, if the amount of the credit allowable under this subdivi-
sion for any taxable year exceeds the tax imposed for such year, the
excess may be carried over, in order, to the five immediately succeeding
taxable years and, to the extent not previously deductible, may be
deducted from the taxpayer's tax for such years.
(3) The credit allowable under this subdivision shall be deducted
after the credits allowed by subdivisions (b) and (j) of this section,
but prior to the deduction of any other credit allowed by this section.
(4) In the case of a taxpayer that has obtained a certification of
eligibility pursuant to chapter six-B of title twenty-two of the code of
the preceding municipality dated on or after July first, two thousand
for a relocation to eligible premises located within the revitalization
area defined in subdivision (n) of section 22-621 of the code of the
preceding municipality, the credits allowed under this subdivision, or
in the case of a taxpayer that has relocated more than once, the portion
of such credits attributed to such certification of eligibility pursuant
to paragraph one of this subdivision, against the tax imposed by this
chapter for the taxable year of such relocation and for the four taxable
years immediately succeeding the taxable year of such relocation, shall
be deemed to be overpayments of tax by the taxpayer to be credited or
refunded, without interest, in accordance with the provisions of section
11-526 of this chapter. For such taxable years, such credits or portions
thereof may not be carried over to any succeeding taxable year;
provided, however, that this paragraph shall not apply to any relocation
for which an application for a certification of eligibility was not
submitted prior to July first, two thousand three, unless the date of
such relocation is on or after July first, two thousand.
(j) (1) If a partner in an unincorporated business is taxable under
this chapter and is required to include in unincorporated business taxa-
ble income his, her or its distributive share of income, gain, loss and
deductions of, or guaranteed payments from, such unincorporated busi-
ness, such partner shall be allowed a credit against the tax imposed by
this chapter equal to the lesser of the amounts determined in subpara-
graphs (A) and (B) of this paragraph:
A. 10030 358
(A) The amount determined in this subparagraph is the product of (i)
the sum of (I) the tax imposed by this chapter on the unincorporated
business for its taxable year ending within or with the taxable year of
the partner and paid by the unincorporated business and (II) the amount
of any credit or credits taken by the unincorporated business under this
section (except the credit allowed by subdivision (b) of this section)
for its taxable year ending within or with the taxable year of the part-
ner, to the extent that such credits do not reduce such unincorporated
business's tax below zero, and (ii) a fraction, the numerator of which
is the net total of the partner's distributive share of income, gain,
loss and deductions of, and guaranteed payments from, the unincorporated
business for such taxable year, and the denominator of which is the sum,
for such taxable year, of the net total distributive shares of income,
gain, loss and deductions of, and guaranteed payments to, all partners
in the unincorporated business for whom or which such net total, as
separately determined for each partner, is greater than zero.
(B) The amount determined in this subparagraph is the difference
between (i) the tax computed pursuant to this chapter on the unincorpo-
rated business taxable income of the partner, without allowance of any
credits allowed by this section, and (ii) the tax so computed, deter-
mined as if the partner had no such distributive share or guaranteed
payments with respect to the unincorporated business, provided, however,
that the amounts computed in clauses (i) and (ii) of this subparagraph
shall be computed with the following modifications:
(I) such amounts shall be computed without taking into account any
carryforward or carryback by the partner of a net operating loss;
(II) if, prior to taking into account any distributive share or guar-
anteed payments from any unincorporated business or any net operating
loss carryforward or carryback, the unincorporated business taxable
income of the partner is less than zero, such unincorporated business
taxable income shall be treated as zero; and
(III) if such partner's net total distributive share of income, gain,
loss and deductions of, and guaranteed payments from, any unincorporated
business is less than zero, such net total shall be treated as zero. The
amount determined in this subparagraph shall not be less than zero.
(2) (A) Notwithstanding anything to the contrary in paragraph one of
this subdivision, the credit or the sum of the credits that may be taken
by a partner for a taxable year under this subdivision with respect to
an unincorporated business or unincorporated businesses in which he, she
or it is a partner shall not exceed the tax imposed on the unincorporat-
ed business taxable income of such partner under this chapter for such
taxable year reduced by the credit allowed under subdivision (b) of this
section. If the credit allowed under paragraph one of this subdivision
or the sum of such credits exceeds such tax as so reduced, the amount of
the excess may be carried forward, in order, to each of the seven imme-
diately succeeding taxable years and, to the extent not previously
taken, shall be allowed as a credit in each of such years, provided, the
credit determined for the taxable year under paragraph one of this
subdivision shall be taken before taking any credit carryforward pursu-
ant to this paragraph and the credit carryforward attributable to the
earliest taxable year shall be taken before taking a credit carryforward
attributable to a subsequent taxable year.
(B) Notwithstanding anything to the contrary in subparagraph (A) of
this paragraph, in the case of a partner which is a partnership, no
credit carryforward to any taxable year shall be allowed unless one or
more of the partners therein during such taxable year were persons
A. 10030 359
having a proportionate interest or interests, amounting to at least
eighty percent of all such interests, in the unincorporated business
gross income and unincorporated business deductions of the partnership
which was allowed the credit for which a carryforward is claimed. In
such event, the carryforward allowable on account of such credit shall
not exceed the percentage of the amount otherwise allowable, determined
by dividing (i) the sum of the proportionate interests in the unincorpo-
rated business gross income and unincorporated business deductions of
the partnership, for the year to which the credit is carried forward,
attributable to such partners, by (ii) the sum of such proportionate
interests owned by all partners for such taxable year. The amount by
which the carryforward otherwise allowable exceeds the amount allowable
pursuant to this subparagraph shall not be a carryforward to any other
taxable year.
(3) The credit allowed under this subdivision shall not be allowed to
a partner in an unincorporated business with respect to any tax paid by
the unincorporated business under this chapter for any taxable year
beginning before July first, nineteen hundred ninety-four.
(4) Notwithstanding anything to the contrary, the credit allowable
under this subdivision shall be taken after the credit allowed by subdi-
vision (b) of this section is taken, but before any other credit allowed
by this section is taken.
(5) The commissioner of finance of the city of Staten Island shall
convene a working group, consisting of representatives of the department
of finance of the city of Staten Island and representatives of affected
industries, and other persons the commissioner deems appropriate, to
study the treatment under the unincorporated business tax of income from
investment and real estate activities and the impact of the credit
permitted by this subdivision, including but not limited to cases where
interests in a taxpayer are held by another taxpayer subject to tax on
unincorporated business taxable income and the first taxpayer is enti-
tled to claim a deduction for a net operating loss carryover and the
second is not entitled to a corresponding deduction with the result, in
certain cases, that the net income allocated to the second taxpayer may
be subject to an effective rate of tax in excess of the rate imposed by
this chapter. In addition, the working group shall also study the tax
treatment of parking garages which are open or available to the general
public and which also provide available space to tenants. In conducting
such study, such working group shall take into account such factors as
economic development, tax administration and other goals of tax policy
and shall consider alternatives that would reduce disincentives for
investing in corporations and other entities engaged in business in the
city of Staten Island, such as exempting income from investment activ-
ities from the tax on unincorporated business taxable income. The
commissioner shall prepare a report based on the deliberations of the
working group on or before April fifteenth, nineteen hundred ninety-
five.
(k) Credit relating to certain sales and compensating use taxes on
certain services. (1) In addition to any other credit allowed by this
section, a taxpayer shall be allowed a credit against the tax imposed by
this chapter to be credited or refunded in the manner hereinafter
provided in this subdivision. The amount of such credit shall be equal
to the amount of sales and compensating use taxes imposed by section
eleven hundred seven of the tax law during the taxpayer's taxable year,
and the amount of any interest imposed in connection therewith, which
was paid after January first, nineteen hundred ninety-five, less any
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credit or refund of such taxes (or such interest), with respect to the
purchase or use by the taxpayer of the services described in subdivision
(b) of section eleven hundred five-b of the tax law.
(2) The credit allowed under this subdivision for any taxable year
shall be deemed to be an overpayment of tax by the taxpayer to be cred-
ited or refunded, without interest, in accordance with the provisions of
section 11-526 of this chapter.
(3) Where the taxpayer receives a refund or credit of any tax imposed
under section eleven hundred seven of the tax law, or of any interest
imposed in connection therewith, for which the taxpayer had claimed a
credit under this subdivision in a prior taxable year, the amount of
such tax, or such interest, refund or credit shall be added to the tax
imposed by this chapter, and such amount shall be subtracted in comput-
ing unincorporated business taxable income for the taxable year.
(l) Lower Manhattan relocation and employment assistance credit. (1)
In addition to any other credit allowed by this section, a taxpayer that
has obtained the certifications required by chapter six-C of title twen-
ty-two of the code of the preceding municipality shall be allowed a
credit against the tax imposed by this chapter. The amount of the credit
shall be the amount determined by multiplying three thousand dollars by
the number of eligible aggregate employment shares maintained by the
taxpayer during the taxable year with respect to eligible premises to
which the taxpayer has relocated; provided, however, that no credit
shall be allowed for the relocation of any retail activity or hotel
services; provided, further, that no credit shall be allowed under this
subdivision to any taxpayer that has elected pursuant to subdivision (d)
of section 22-624 of the code of the preceding municipality to take such
credit against a gross receipts tax imposed under chapter eleven of this
title. For purposes of this subdivision, the terms "eligible aggregate
employment shares", "eligible premises", "relocate", "retail activity"
and "hotel services" shall have the meanings ascribed by section 22-623
of the code of the preceding municipality.
(2) The credit allowed under this subdivision with respect to eligible
aggregate employment shares maintained with respect to eligible premises
to which the taxpayer has relocated shall be allowed for the taxable
year of the relocation and for any of the twelve succeeding taxable
years during which eligible aggregate employment shares are maintained
with respect to eligible premises; provided that the credit allowed for
the twelfth succeeding taxable year shall be calculated by multiplying
the number of eligible aggregate employment shares maintained with
respect to eligible premises in the twelfth succeeding taxable year by
the lesser of one and a fraction the numerator of which is such number
of days in the taxable year of relocation less the number of days the
taxpayer maintained employment shares in eligible premises in the taxa-
ble year of relocation and the denominator of which is the number of
days in such twelfth succeeding taxable year during which such eligible
aggregate employment shares are maintained with respect to such prem-
ises.
(3) Except as provided in paragraph four of this subdivision, if the
amount of the credit allowable under this subdivision for any taxable
year exceeds the tax imposed for such year, the excess may be carried
over, in order, to the five immediately succeeding taxable years and, to
the extent not previously deductible, may be deducted from the taxpay-
er's tax for such years.
(4) The credits allowed under this subdivision, against the tax
imposed by this chapter for the taxable year of the relocation and for
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the four taxable years immediately succeeding the taxable year of such
relocation, shall be deemed to be overpayments of tax by the taxpayer to
be credited or refunded, without interest, in accordance with the
provisions of section 11-526 of this chapter. For such taxable years,
such credits or portions thereof may not be carried over to any succeed-
ing taxable year.
(5) The credit allowable under this subdivision shall be deducted
after the credits allowed by subdivisions (b), (i) and (j) of this
section, but prior to the deduction of any other credit allowed by this
section.
(n) Industrial business zone tax credit. (1) For taxable years begin-
ning on or after January first, two thousand six, in addition to any
other credit allowed by this section, an eligible business that first
enters into a binding contract on or after July first, two thousand five
to purchase or lease eligible premises to which it relocates shall be
allowed a one-time credit against the tax imposed by this chapter to be
credited or refunded in the manner hereinafter provided in this subdivi-
sion. The amount of such credit shall be one thousand dollars per full-
time employee; provided, however, that the amount of such credit shall
not exceed the lesser of actual relocation costs or one hundred thousand
dollars.
(2) When used in this subdivision, the following terms shall have the
following meanings:
"Eligible business" means any business subject to tax under this chap-
ter that (A) has been conducting substantial business operations and
engaging primarily in industrial and manufacturing activities at one or
more locations within the city of Staten Island or outside the state of
New York continuously during the twenty-four consecutive full months
immediately preceding relocation, (B) has leased the premises from which
it relocates continuously during the twenty-four consecutive full months
immediately preceding relocation, (C) first enters into a binding
contract on or after July first, two thousand five to purchase or lease
eligible premises to which such business will relocate, and (D) will be
engaged primarily in industrial and manufacturing activities at such
eligible premises.
"Eligible premises" means premises located entirely within an indus-
trial business zone. For any eligible business, an industrial business
zone tax credit shall not be granted with respect to more than one
eligible premises.
"Full-time employee" means (A) one person gainfully employed in an
eligible premises by an eligible business where the number of hours
required to be worked by such person is not less than thirty-five hours
per week; or (B) two persons gainfully employed in an eligible premises
by an eligible business where the number of hours required to be worked
by each such person is more than fifteen hours per week but less than
thirty-five hours per week.
"Industrial business zone" means an area within the city of Staten
Island established pursuant to section 22-626 of the code of the preced-
ing municipality.
"Industrial business zone tax credit" means a credit, as provided for
in this subdivision, against a tax imposed under this chapter.
"Industrial and manufacturing activities" means activities involving
the assembly of goods to create a different article, or the processing,
fabrication, or packaging of goods. Industrial and manufacturing activ-
ities shall not include waste management or utility services.
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"Relocation" means the physical relocation of furniture, fixtures,
equipment, machinery and supplies directly to an eligible premises, from
one or more locations of an eligible business, including at least one
location at which such business conducts substantial business operations
and engages primarily in industrial and manufacturing activities. For
purposes of this subdivision, the date of relocation shall be (A) the
date of the completion of the relocation to the eligible premises or (B)
ninety days from the commencement of the relocation to the eligible
premises, whichever is earlier.
"Relocation costs" means costs incurred in the relocation of such
furniture, fixtures, equipment, machinery and supplies, including, but
not limited to, the cost of dismantling and reassembling equipment and
the cost of floor preparation necessary for the reassembly of the equip-
ment. Relocation costs shall include only such costs that are incurred
during the ninety-day period immediately following the commencement of
the relocation to an eligible premises. Relocation costs shall not
include any costs for structural or capital improvements or items
purchased in connection with the relocation.
(3) The credit allowed under this subdivision for any taxable year
shall be deemed to be an overpayment of tax by the taxpayer to be cred-
ited or refunded without interest, in accordance with the provisions of
section 11-526 of this chapter.
(4) The number of full-time employees for the purposes of calculating
an industrial business zone tax credit shall be the average number of
full-time employees, calculated on a weekly basis, employed in the
eligible premises by the eligible business in the fifty-two week period
immediately following relocation.
(5) The credit allowed under this subdivision must be taken by the
taxpayer in the taxable year in which such fifty-two week period ends.
(6) For the purposes of calculating entire net income in the taxable
year that an industrial business zone tax credit is allowed, a taxpayer
must add back the amount of the credit allowed under this subdivision,
to the extent of any relocation costs deducted in the current taxable
year or a prior taxable year in calculating federal taxable income.
(7) The credit allowed under this subdivision shall not be granted for
an eligible business for more than one relocation. Notwithstanding the
foregoing, an industrial business zone tax credit allowed under this
subdivision shall not be granted if the eligible business receives bene-
fits pursuant to chapter six-B or six-C of title twenty-two of the code
of the preceding municipality, through a grant program administered by
the business relocation assistance corporation, or through the Staten
Island city printers relocation fund grant.
(8) The commissioner of finance is authorized to promulgate rules and
regulations and to prescribe forms necessary to effectuate the purposes
of this subdivision.
The commissioner of finance is empowered to promulgate rules and regu-
lations and to prescribe the form of application to be used.
(B) Definitions: When used in this section, "Employment Opportunity"
means the creation of a full time position of gainful employment for an
industrial or commercial employee and the actual hiring of such employee
for the said position.
"Industrial Employee" means one engaged in the manufacture or assembl-
ing of tangible goods or the processing of raw materials.
"Commercial Employee" means one engaged in the buying, selling or
otherwise providing of goods or services other than on a retail basis.
A. 10030 363
"Retail" means the selling or otherwise disposing of tangible goods
directly to the ultimate user or consumer.
"Full Time Position" means the hiring of an industrial or commercial
employee in a position of gainful employment where the number of hours
worked by such employee is not less than thirty hours during any given
work week.
"Employment Opportunity Relocation Costs" means the costs incurred by
the taxpayer in moving furniture, files, papers and office equipment
into the city from a location outside the state; the costs incurred by
the taxpayer in the moving from a location outside the state; the costs
of installation of telephones and other communications equipment
required as a result of the relocation to the city from a location
outside the state; the cost incurred in the purchase of office furniture
and fixtures required as a result of the relocation to the city from a
location outside the state; and the cost of renovation of the premises
to be occupied as a result of the relocation provided, however, that
such renovation costs shall be allowable only to the extent that they do
not exceed seventy-five cents per square foot of the total area utilized
by the taxpayer in the occupied premises.
(2) The credit allowed under this section for any taxable year shall
be deemed to be an overpayment of tax by the taxpayer to be credited or
refunded without interest, in accordance with the provisions of section
11-526 of this chapter.
(o) Biotechnology credit. (a)(1) A taxpayer that is a qualified emerg-
ing technology company, engages in biotechnologies, and meets the eligi-
bility requirements of this subdivision, shall be allowed a credit
against the tax imposed by this subchapter. The amount of credit shall
be equal to the sum of the amounts specified in subparagraphs three,
four and five of this paragraph, subject to the limitations in subpara-
graph seven of this paragraph and paragraph (b) of this subdivision. For
the purposes of this subdivision, "qualified emerging technology compa-
ny" shall mean a company located in city: (A) whose primary products or
services are classified as emerging technologies and whose total annual
product sales are ten million dollars or less; or (B) a company that has
research and development activities in city and whose ratio of research
and development funds to net sales equals or exceeds the average ratio
for all surveyed companies classified as determined by the National
Science Foundation in the most recent published results from its Survey
of Industry Research and Development, or any comparable successor survey
as determined by the department, and whose total annual product sales
are ten million dollars or less. For the purposes of this subdivision,
the definition of research and development funds shall be the same as
that used by the National Science Foundation in the aforementioned
survey. For the purposes of this subdivision, "biotechnologies" shall
mean the technologies involving the scientific manipulation of living
organisms, especially at the molecular and/or the sub-molecular genetic
level, to produce products conducive to improving the lives and health
of plants, animals, and humans; and the associated scientific research,
pharmacological, mechanical, and computational applications and services
connected with these improvements. Activities included with such appli-
cations and services shall include, but not be limited to, alternative
mRNA splicing, DNA sequence amplification, antigenetic switching bioaug-
mentation, bioenrichment, bioremediation, chromosome walking, cytogenet-
ic engineering, DNA diagnosis, fingerprinting, and sequencing, electro-
poration, gene translocation, genetic mapping, site-directed
A. 10030 364
mutagenesis, bio-transduction, bio-mechanical and bio-electrical engi-
neering, and bio-informatics.
(2) An eligible taxpayer shall (A) have no more than one hundred full-
time employees, of which at least seventy-five percent are employed in
the city, (B) have a ratio of research and development funds to net
sales, as referred to in section thirty-one hundred two-e of the public
authorities law, which equals or exceeds six percent during the calendar
year ending with or within the taxable year for which the credit is
claimed, and (C) have gross revenues, along with the gross revenues of
its "affiliates" and "related members" not exceeding twenty million
dollars for the calendar year immediately preceding the calendar year
ending with or within the taxable year for which the credit is claimed.
For the purposes of this subdivision, "affiliates" shall mean those
corporations that are members of the same affiliated group, as defined
in section fifteen hundred four of the internal revenue code, as the
taxpayer. For the purposes of this subdivision, "related members" shall
mean a person, corporation, or other entity, including an entity that is
treated as a partnership or other pass-through vehicle for purposes of
federal taxation, whether such person, corporation or entity is a
taxpayer or not, where one such person, corporation or entity, or set of
related persons, corporations or entities, directly or indirectly owns
or controls a controlling interest in another entity. Such entity or
entities may include all taxpayers under chapters six, eleven and seven-
teen of this title, and subchapters two and three of this chapter. A
controlling interest shall mean, in the case of a corporation, either
thirty percent or more of the total combined voting power of all classes
of stock of such corporation, or thirty percent or more of the capital,
profits or beneficial interest in such voting stock of such corporation;
and in the case of a partnership, association, trust or other entity,
thirty percent or more of the capital, profits or beneficial interest in
such partnership, association, trust or other entity.
(3) An eligible taxpayer shall be allowed a credit for eighteen per
centum of the cost or other basis for federal income tax purposes of
research and development property that is acquired by the taxpayer by
purchase as defined in section 179(d) of the internal revenue code and
placed in service during the calendar year that ends with or within the
taxable year for which the credit is claimed. Provided, however, for the
purposes of this paragraph only, an eligible taxpayer shall be allowed a
credit for such percentage of the (A) cost or other basis for federal
income tax purposes for property used in the testing or inspection of
materials and products, (B) the costs or expenses associated with quali-
ty control of the research and development, (C) fees for use of sophis-
ticated technology facilities and processes, (D) fees for the production
or eventual commercial distribution of materials and products resulting
from the activities of an eligible taxpayer as long as such activities
fall under activities relating to biotechnologies. The costs, expenses
and other amounts for which a credit is allowed and claimed under this
paragraph shall not be used in the calculation of any other credit
allowed under this subchapter. For the purposes of this subdivision,
"research and development property" shall mean property that is used for
purposes of research and development in the experimental or laboratory
sense. Such purposes shall not be deemed to include the ordinary testing
or inspection of materials or products for quality control, efficiency
surveys, management studies, consumer surveys, advertising, promotions,
or research in connection with literary, historical or similar projects.
A. 10030 365
(4) An eligible taxpayer shall be allowed a credit for nine per centum
of qualified research expenses paid or incurred by the taxpayer in the
calendar year ending with or within the taxable year for which the cred-
it is claimed. For the purposes of this subdivision, "qualified research
expenses" shall mean expenses associated with in-house research and
processes, and costs associated with the dissemination of the results of
the products that directly result from such research and development
activities; provided, however, that such costs shall not include adver-
tising or promotion through media. In addition, costs associated with
the preparation of patent applications, patent application filing fees,
patent research fees, patent examinations fees, patent post allowance
fees, patent maintenance fees, and grant application expenses and fees
shall qualify as qualified research expenses. In no case shall the cred-
it allowed under this paragraph apply to expenses for litigation or the
challenge of another entity's intellectual property rights, or for
contract expenses involving outside paid consultants.
(5) An eligible taxpayer shall be allowed a credit for qualified high-
technology training expenditures as described in this paragraph paid or
incurred by the taxpayer during the calendar year that ends with or
within the taxable year for which the credit is claimed.
(A) The amount of credit shall be one hundred percent of the training
expenses described in subparagraph (C) of this paragraph, subject to a
limitation of no more than four thousand dollars per employee per calen-
dar year for such training expenses.
(B) Qualified high-technology training shall include a course or
courses taken and satisfactorily completed by an employee of the taxpay-
er at an accredited, degree granting post-secondary college or universi-
ty in city that (i) directly relates to biotechnology activities, and
(ii) is intended to upgrade, retrain or improve the productivity or
theoretical awareness of the employee. Such course or courses may
include, but are not limited to, instruction or research relating to
techniques, meta, macro, or micro-theoretical or practical knowledge
bases or frontiers, or ethical concerns related to such activities. Such
course or courses shall not include classes in the disciplines of
management, accounting or the law or any class designed to fulfill the
discipline specific requirements of a degree program at the associate,
baccalaureate, graduate or professional level of these disciplines.
Satisfactory completion of a course or courses shall mean the earning
and granting of credit or equivalent unit, with the attainment of a
grade of "B" or higher in a graduate level course or courses, a grade of
"C" or higher in an undergraduate level courses or courses, or a similar
measure of competency for a course that is not measured according to a
standard grade formula.
(C) Qualified high-technology training expenditures shall include
expenses for tuition and mandatory fees, software required by the insti-
tution, fees for textbooks or other literature required by the institu-
tion offering the course or courses, minus applicable scholarships and
tuition or fee waivers not granted by the taxpayer or any affiliates of
the taxpayer, that are paid or reimbursed by the taxpayer. Qualified
high-technology expenditures do not include room and board, computer
hardware or software not specifically assigned for such course or cours-
es, late-charges, fines or membership dues and similar expenses. Such
qualified expenditures shall not be eligible for the credit provided by
this section unless the employee for whom the expenditures are disbursed
is continuously employed by the taxpayer in a full-time, full-year posi-
tion primarily located at a qualified site during the period of such
A. 10030 366
coursework and lasting through at least one hundred eighty days after
the satisfactory completion of the qualifying course-work. Qualified
high-technology training expenditures shall not include expenses for
in-house or shared training outside of a city higher education institu-
tion or the use of consultants outside of credit granting courses,
whether such consultants function inside of such higher education insti-
tution or not.
(D) If a taxpayer relocates from an academic business incubator facil-
ity partnered with an accredited post-secondary education institution
located within city, which provides space and business support services
to taxpayers, to another site, the credit provided in this subdivision
shall be allowed for all expenditures referenced in subparagraph (C) of
this paragraph paid or incurred in the two preceding calendar years that
the taxpayer was located in such an incubator facility for employees of
the taxpayer who also relocate from said incubator facility to such city
site and are employed and primarily located by the taxpayer in city.
Such expenditures in the two preceding years shall be added to the
amounts otherwise qualifying for the credit provided by this subdivision
that were paid or incurred in the calendar year that the taxpayer relo-
cates from such a facility. Such expenditures shall include expenses
paid for an eligible employee who is a full-time, full-year employee of
said taxpayer during the calendar year that the taxpayer relocated from
an incubator facility notwithstanding (i) that such employee was
employed full or part-time as an officer, staff-person or paid intern of
the taxpayer when such taxpayer was located at such incubator facility
or (ii) that such employee was not continuously employed when such
taxpayer was located at the incubator facility during the one hundred
eighty day period referred to in subparagraph (C) of this paragraph,
provided such employee received wages or equivalent income for at least
seven hundred fifty hours during any twenty-four month period when the
taxpayer was located at the incubator facility. Such expenditures shall
include payments made to such employee after the taxpayer has relocated
from the incubator facility for qualified expenditures if such payments
are made to reimburse an employee for expenditures paid by the employee
during such two preceding years. The credit provided under this para-
graph shall be allowed in any taxable year that the taxpayer qualifies
as an eligible taxpayer.
(E) For purposes of this subdivision the term "academic year" shall
mean the annual period of sessions of a post-secondary college or
university.
(F) For the purposes of this subdivision the term "academic incubator
facility" shall mean a facility providing low-cost space, technical
assistance, support services and educational opportunities, including
but not limited to central services provided by the manager of the
facility to the tenants of the facility, to an entity located in city.
Such entity's primary activity must be in biotechnologies, and such
entity must be in the formative stage of development. The academic incu-
bator facility and the entity must act in partnership with an accredited
post-secondary college or university located in city. An academic incu-
bator facility's mission shall be to promote job creation, entrepreneur-
ship, technology transfer, and provide support services to incubator
tenants, including, but not limited to, business planning, management
assistance, financial-packaging, linkages to financing services, and
coordinating with other sources of assistance.
(6) An eligible taxpayer may claim credits under this subdivision for
three consecutive years. In no case shall the credit allowed by this
A. 10030 367
subdivision to a taxpayer exceed two hundred fifty thousand dollars per
calendar year for eligible expenditures made during such calendar year.
(7) The credit allowed under this subdivision for any taxable year
shall not reduce the tax due for such year to less than the amount
computed in subdivision (a) of this section. Provided, however, if the
amount of credit allowed under this subdivision for any taxable year
reduces the tax to such amount, any amount of credit not deductible in
such taxable year shall be treated as an overpayment of tax to be cred-
ited or refunded in accordance with the provisions of section 11-526 of
this chapter; provided, however, that notwithstanding the provisions of
section 11-528 of this chapter, no interest shall be paid thereon.
(8) The credit allowed under this subdivision shall only be allowed
for taxable years beginning on or after January first, two thousand ten
and before January first, two thousand nineteen.
(b)(1) The percentage of the credit allowed to a taxpayer under this
subdivision in any calendar year shall be:
(A) If the average number of individuals employed full time by a
taxpayer in the city during the calendar year that ends with or within
the taxable year which the credit is claimed is at least one hundred
five percent of the taxpayer's base year employment, one hundred
percent, except that in no case shall the credit allowed under this
clause exceed two hundred fifty thousand dollars per calendar year.
Provided, however, the increase in base year employment shall not apply
to a taxpayer allowed a credit under this subdivision that was (I)
located outside of the city, (II) not doing business, or (III) did not
have any employees, in the year preceding the first year that the credit
is claimed. Any such taxpayer shall be eligible for one hundred percent
of the credit for the first calendar year that ends with or within the
taxable year for which the credit is claimed, provided that such taxpay-
er locates in the city, begins doing business in the city or hires
employees in the city during such calendar year and is otherwise eligi-
ble for the credit pursuant to the provisions of this subdivision.
(B) If the average number of individuals employed full time by a
taxpayer in the city during the calendar year that ends with or within
the taxable year for which the credit is claimed is less than one
hundred five percent of the taxpayer's base year employment, fifty
percent, except that in no case shall the credit allowed under this
clause exceed one hundred twenty five thousand dollars per calendar
year. In the case of an entity located in city receiving space and busi-
ness support services by an academic incubator facility, if the average
number of individuals employed full time by such entity in the city
during the calendar year in which the credit allowed under this subdivi-
sion is claimed is less than one hundred five percent of the taxpayer's
base year employment, the credit shall be zero.
(2) For the purposes of this subdivision, "base year employment" means
the average number of individuals employed full-time by the taxpayer in
the city in the year preceding the first calendar year that ends with or
within the taxable year for which the credit is claimed.
(3) For the purposes of this subdivision, average number of individ-
uals employed full-time shall be computed by adding the number of such
individuals employed by the taxpayer at the end of each quarter during
each calendar year or other applicable period and dividing the sum so
obtained by the number of such quarters occurring within such calendar
year or other applicable period.
(4) Notwithstanding anything contained in this section to the contra-
ry, the credit provided by this subdivision shall be allowed against the
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taxes authorized by this chapter for the taxable year after reduction by
all other credits permitted by this chapter.
(p) Beer production credit. (1) A taxpayer subject to tax under this
chapter, that is registered as a distributor under article eighteen of
the tax law, and that produces sixty million or fewer gallons of beer in
this state in the taxable year, shall be allowed a credit against the
tax imposed by this chapter in the amount specified in paragraph two of
this subdivision. Provided, however, that no credit shall be allowed for
any beer produced in excess of fifteen million five hundred thousand
gallons in the taxable year. Notwithstanding anything in this title to
the contrary, if a partnership is allowed a credit under this subdivi-
sion, a taxpayer that is a partner in such partnership shall not be
allowed a credit under this subdivision for any taxable year that
includes the last day of the taxable year for which the partnership is
allowed such credit.
(2) The amount of the credit per taxpayer per taxable year for each
gallon of beer produced in the city on or after January first, two thou-
sand seventeen shall be determined as follows:
(i) for the first five hundred thousand gallons of beer produced in
the city in the taxable year, the credit shall equal twelve cents per
gallon; and
(ii) for each gallon of beer produced in the city in the taxable year
in excess of five hundred thousand gallons, the credit shall equal three
and eighty-six one hundredths cents per gallon. The credit allowed under
this subdivision for any taxable year shall be treated as an overpayment
of tax to be credited or refunded in accordance with the provisions of
section 11-526 of this chapter; provided, however, that notwithstanding
the provisions of section 11-528 of this chapter, no interest shall be
paid thereon.
(q) Credit for the provision of child care. In addition to any other
credit allowed under this section, a taxpayer whose application for a
credit authorized by section 11-144 of this title has been approved by
the department of finance shall be allowed a credit against the tax
imposed by this chapter. The amount of the credit shall be determined as
provided in such section. To the extent the amount of the credit allowed
by this subdivision exceeds the amount of tax due pursuant to this chap-
ter, as calculated without such credit, such excess amount shall be
treated as an overpayment of tax to be credited or refunded in accord-
ance with the provisions of section 11-526 of this chapter, provided,
however, that notwithstanding the requirements of section 11-528 of this
chapter to the contrary, no interest shall be paid thereon.
§ 11-504 Taxable years to which tax applies; tax for taxable years
beginning prior to and ending after January first, nineteen hundred
sixty-six. (a) General. The tax imposed by section 11-503 of this
chapter, with any modification permitted by subdivision (b) of this
section, is imposed for each taxable year beginning with taxable years
ending on or after January first, nineteen hundred sixty-six.
(b) Alternate methods for determining tax for taxable years ending on
or after January first, nineteen hundred sixty-six. (1) The tax for any
taxable year ending on or after January first, nineteen hundred sixty-
six and before December thirty-first, nineteen hundred sixty-six, shall
be an amount equal to the tax which would have been imposed had section
11-503 of this chapter been in effect for the entire taxable year,
multiplied by the number of months, or major portions thereof, in such
taxable year which occur after December thirty-first, nineteen hundred
A. 10030 369
sixty-five and divided by the number of months, or major portions there-
of, in such taxable year.
(2) In lieu of the method of computation of tax prescribed in para-
graph one of this subdivision, if the taxpayer maintained adequate
records for the portion of any taxable year ending on or after January
first, nineteen hundred sixty-six, and before December thirty-first,
nineteen hundred sixty-six, which falls within the calendar year nine-
teen hundred sixty-six, the tax for such taxable year at the election of
the taxpayer may be computed on the basis of the unincorporated business
taxable income which the taxpayer would have reported had he or she
filed a federal income tax return for a taxable year beginning January
first, nineteen hundred sixty-six and ending with the close of such
taxable year ending before December thirty-first, nineteen hundred
sixty-six. Such taxable year beginning January first, nineteen hundred
sixty-six and ending before December thirty-first, nineteen hundred
sixty-six shall be deemed, unless clearly indicated otherwise, to be the
taxable year of the taxpayer. For purposes of this paragraph, the unin-
corporated business exemptions allowable under section 11-510 of this
chapter, the credit allowable under subdivision (b) of section 11-503 of
this chapter and any net operating loss deduction as modified pursuant
to subdivision (b) of section 11-507 of this chapter shall each be
reduced by the same part of such exemptions, credit, or net operating
loss deduction, as the case may be, as the number of months, or major
portions thereof, in the taxable year occurring before January first,
nineteen hundred sixty-six is of the number of months, or major portions
thereof, in such taxable year. Except as provided in paragraph two, the
tax for such period ending before December thirty-first, nineteen
hundred sixty-six, shall be computed in accordance with the other
provisions of this chapter.
§ 11-505 Unincorporated business taxable income. The unincorporated
business taxable income of an unincorporated business shall be the
excess of its unincorporated business entire net income allocated to the
city, less the amount of:
(1) Its deductions under section 11-509 of this chapter not subject to
allocation; and
(2) Its unincorporated business exemptions under section 11-510 of
this chapter.
§ 11-506 Unincorporated business gross income. (a) (1) General.
Unincorporated business gross income of an unincorporated business means
the sum of the items of income and gain of the business, of whatever
kind and in whatever form paid, includible in gross income for the taxa-
ble year for federal income tax purposes, including income and gain from
any property employed in the business, or from liquidation of the busi-
ness, or from collection of installment obligations of the business, or
from the sale or other disposition by an unincorporated entity of an
interest in another unincorporated entity if and to the extent such
income or gain is attributable to a trade, business, profession or occu-
pation carried on in whole or in part in the city by such other unincor-
porated entity, with the modifications specified in this section.
(2) The character of a partner's distributive share of gross income,
gains, losses and deductions of an unincorporated entity shall be deter-
mined as if such gross income, gains, losses and deductions were real-
ized directly by such partner regardless of how the interest in the
unincorporated entity was acquired and regardless of whether the
distributive share is proportionate to the partner's capital interest in
the unincorporated entity, provided, however, this paragraph shall not
A. 10030 370
apply to payments to a partner treated as occurring between the unincor-
porated entity and one who is not a partner under section seven hundred
seven of the internal revenue code, and provided, further, this para-
graph shall not affect the determination of whether gross income, gains,
losses or deductions of an unincorporated entity are subject to the tax
imposed by this chapter as realized from an unincorporated business.
(b) Modifications increasing federal gross income. There shall be
added to federal gross income of the business the following items
attributable to the business:
(1) Interest income on obligations of any state other than this state,
or of a political subdivision of any such other state unless created by
compact or agreement to which this state is a party.
(2) Interest or dividend income on obligations or securities of any
authority, commission, or instrumentality of the United States, which
the laws of the United States exempt from federal income tax but not
from state or local income taxes.
(3) In the case of a taxpayer who has exercised the election permitted
by subdivision (b) of section 11-509 of this chapter, if the property to
which such election relates was sold or otherwise disposed of during the
taxable year, the amount required by such subdivision to be added to
federal gross income.
(4) The entire amount allowable as an exclusion or deduction for stock
transfer taxes imposed by article twelve of the tax law in determining
federal gross income but only to the extent that such taxes are incurred
and paid in market making transactions.
(5) The amount allowed as an exclusion or deduction for sales and use
taxes imposed by section eleven hundred seven of the tax law in deter-
mining federal gross income but only such portion of such exclusion or
deduction which is not in excess of the amount of the credit allowed
pursuant to subdivision (d) of section 11-503 of this chapter.
(6) The amount allowed as an exclusion or deduction as rent in deter-
mining federal gross income but only such portion of such exclusion or
deduction which is not in excess of the amount of the credit allowed
pursuant to subdivision (e) of section 11-503 of this chapter.
(7) The amount allowed as an exclusion or deduction in determining
federal gross income but only such portion of such exclusion or
deduction which is not in excess of the amount of the credit allowed
pursuant to subdivision (f) of section 11-503 of this chapter.
(8) For taxable years beginning after December thirty-first, nineteen
hundred eighty-one, except with respect to property which is a qualified
mass commuting vehicle described in subparagraph (D) of paragraph eight
of subsection (f) of section one hundred sixty-eight of the internal
revenue code, relating to qualified mass commuting vehicles, any amount
which would properly be includible for federal income tax purposes had
the taxpayer not made the election permitted pursuant to such paragraph
eight as it was in effect for agreements entered into prior to January
first, nineteen hundred eighty-four.
(9) Upon the disposition of property to which subdivision (o) of
section 11-507 of this chapter applies, the amount, if any, by which the
aggregate of the amounts described in such subdivision fifteen attribut-
able to such property exceeds the aggregate of the amounts described in
subdivision (n) of section 11-507 of this chapter attributable to such
property.
(10) The amount allowed as an exclusion or deduction for sales and use
taxes imposed by section eleven hundred seven of the tax law in deter-
mining federal gross income, but only such portion of such exclusion or
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deduction which is not in excess of the amount of the credit allowed
pursuant to subdivision (g) of section 11-503 of this chapter.
(12) The amount allowed as an exclusion or deduction for sales and use
taxes imposed by section eleven hundred seven of the tax law, or for any
interest imposed in connection therewith, in determining federal gross
income, but only such portion of such exclusion or deduction which is
not in excess of the amount of the credit allowed pursuant to subdivi-
sion (k) of section 11-503 of this chapter.
(13) Notwithstanding any other provision of this chapter to the
contrary, the amount allowed as an exclusion or deduction in determining
federal gross income of any loss, including but not limited to, losses
from notional principal contracts, losses, other than as a dealer, from
the holding, sale, disposition, assumption, offset or termination of a
position in, property, as defined in paragraph one of subdivision (c) of
section 11-502 of this chapter, or other substantially similar losses
from ordinary and routine trading or investment activity to the extent
determined by the commissioner of finance, realized in connection with
activities described in paragraph two of subdivision (c) of section
11-502 of this chapter if, and to the extent that, such activities are
not deemed an unincorporated business carried on by the taxpayer pursu-
ant to the provisions of subdivision (c) of section 11-502 of this chap-
ter.
(14) Notwithstanding any other provision of this chapter to the
contrary, in the case of a taxpayer that is an unincorporated entity
described in subparagraph (B) of paragraph four of subdivision (c) of
section 11-502 of this chapter, the amount allowed as an exclusion or
deduction in determining federal gross income of any loss realized from
the sale or other disposition of an interest in another unincorporated
entity if, and to the extent that, such loss is attributable to activ-
ities of such other unincorporated entity not deemed an unincorporated
business carried on by the taxpayer pursuant to the provisions of subdi-
vision (c) of section 11-502 of this chapter.
(15) Notwithstanding any other provision of this chapter to the
contrary, the amount allowed as an exclusion or deduction in determining
federal gross income of any loss realized from the holding, leasing or
managing of real property if, and to the extent that, such holding,
leasing or managing of real property is not deemed an unincorporated
business carried on by the taxpayer pursuant to the provisions of subdi-
vision (d) of section 11-502 of this chapter.
(16) Notwithstanding any other provision of this chapter to the
contrary, the amount allowed as an exclusion or deduction in determining
federal gross income of any loss realized from the provision by an
owner, lessee or fiduciary holding, leasing or managing real property of
the service of parking, garaging or storing of motor vehicles on a
monthly or longer term basis to tenants at such real property if, and to
the extent that, the provision of such services to such tenants is not
deemed an unincorporated business carried on by the taxpayer pursuant to
the provisions of subdivision (d) of section 11-502 of this chapter.
(17) For taxable years beginning in two thousand nineteen and two
thousand twenty, the amount of the increase in the federal interest
deduction allowed pursuant to section 163(j)(10) of the internal revenue
code.
(18) Notwithstanding any other provision of this chapter to the
contrary, for taxable years beginning before January first, two thousand
twenty-one, the amount of increase in the federal deduction allowed
A. 10030 372
pursuant to any amendment to section 461(l) of the internal revenue code
made after March first, two thousand twenty.
(c) Modifications reducing federal gross income. There shall be
subtracted from federal gross income of the business the following items
attributable to the business:
(1) Interest income on obligations of the United States and its
possessions to the extent includible in gross income for federal income
tax purposes;
(2) Interest or dividend income on obligations or securities of any
authority, commission or instrumentality of the United States to the
extent includible in gross income for federal income tax purposes but
exempt from state or local income taxes under the laws of the United
States;
(3) Interest or dividend income on obligations or securities to the
extent exempt from income tax under the laws of the city or this state
authorizing the issuance of such obligations or securities but includi-
ble in gross income for federal income tax purposes;
(3-a) Fifty percent of dividends to the extent includible in gross
income for federal income tax purposes and not subtracted under para-
graph two or three of this subdivision, provided, however, that there
shall be no subtraction pursuant to this paragraph for any portion of a
dividend from stock with respect to which a dividend deduction would be
disallowed by subsection (c) of section two hundred forty-six of the
internal revenue code if the unincorporated business were a corporation;
(4) The amount of any refund or credit for overpayment of income taxes
imposed by the city, this state or any other taxing jurisdiction, or the
tax imposed by article thirteen-A of the tax law, to the extent properly
included in gross income for federal tax purposes;
(5) With respect to gain derived from the sale or other disposition of
any property acquired prior to January first, nineteen hundred sixty-
six, except property described in subsections one and four of section
twelve hundred twenty-one of the internal revenue code, the difference
between:
(a) the amount of gain included in federal gross income with respect
to each such property, and
(b) the amount of gain, if smaller than the amount described in
subparagraph (a) of this paragraph, that would be included in federal
gross income with respect to each such property if the federal adjusted
basis of such property on the date of the sale or other disposition had
been equal to its fair market value on January first, nineteen hundred
sixty-six, or the date of its sale or other disposition prior to January
first, nineteen hundred sixty-six, plus or minus all adjustments to
basis made with respect to such property for federal income tax purposes
for periods on and after January first, nineteen hundred sixty-six;
provided, however, that the total modification provided by this subpara-
graph shall not exceed the taxpayer's net gain from the sale or other
disposition of all such property.
(6) For taxable years beginning after December thirty-first, nineteen
hundred eighty-one, except with respect to property which is a qualified
mass commuting vehicle described in subparagraph (D) of paragraph eight
of subsection (f) of section one hundred sixty-eight of the internal
revenue code, relating to qualified mass commuting vehicles, any amount
properly includible in federal gross income solely as a result of an
election made pursuant to the provisions of such paragraph eight as it
was in effect for agreements entered into prior to January first, nine-
teen hundred eighty-four.
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(7) Upon the disposition of property to which subdivision (o) of
section 11-507 of this chapter applies, the amount, if any, by which the
aggregate of the amounts described in subdivision (n) of section 11-507
of this chapter attributable to such property exceeds the aggregate of
the amounts described in subdivision (o) of section 11-507 of this chap-
ter attributable to such property.
(8) Notwithstanding any other provision of this chapter to the contra-
ry, the amount of any income or gain, to the extent includible in gross
income for federal income tax purposes, realized from the holding, leas-
ing or managing of real property if, and to the extent that, such hold-
ing, leasing or managing of real property is not deemed an unincorporat-
ed business carried on by the taxpayer pursuant to the provisions of
subdivision (d) of section 11-502 of this chapter.
(9) Notwithstanding any other provision of this chapter to the contra-
ry, the amount of any income or gain, to the extent includible in gross
income for federal income tax purposes, including but not limited to,
dividends, interest, payments with respect to securities loans, income
from notional principal contracts, or income and gains, other than as a
dealer, from the holding, sale, disposition, assumption, offset or
termination of a position in, property, as defined in paragraph one of
subdivision (c) of section 11-502 of this chapter, or other substantial-
ly similar income from ordinary and routine trading or investment activ-
ity to the extent determined by the commissioner of finance, realized in
connection with activities described in paragraph two of subdivision (c)
of section 11-502 of this chapter if, and to the extent that, such
activities are not deemed an unincorporated business carried on by the
taxpayer pursuant to the provisions of subdivision (c) of section 11-502
of this chapter.
(10) Notwithstanding any other provision of this chapter to the
contrary, in the case of a taxpayer that is an unincorporated entity
described in subparagraph (B) of paragraph four of subdivision (c) of
section 11-502 of this chapter, the amount of any income or gain, to the
extent includible in gross income for federal income tax purposes, real-
ized from the sale or other disposition of an interest in another unin-
corporated entity if, and to the extent that, such income or gain is
attributable to activities of such other unincorporated entity not
deemed an unincorporated business carried on by the taxpayer pursuant to
the provisions of subdivision (c) of section 11-502 of this chapter.
(11) Notwithstanding any other provision of this chapter to the
contrary, the amount of any income or gain, to the extent includible in
gross income for federal income tax purposes, realized from the
provision by an owner, lessee or fiduciary holding, leasing or managing
real property of the service of parking, garaging or storing of motor
vehicles on a monthly or longer term basis to tenants at such real prop-
erty if, and to the extent that, the provision of such services to such
tenants is not deemed an unincorporated business pursuant to the
provisions of subdivision (d) of section 11-502 of this chapter.
(12) The amount of any grant received through either the COVID-19
pandemic small business recovery grant program, pursuant to section
sixteen-ff of the New York state urban development corporation act, or
the small business resilience grant program administered by the depart-
ment of small business services, to the extent the amount of either such
grant is included in federal taxable income.
(d) Upon the disposition of property to which subdivisions (t) and (u)
of section 11-507 of this chapter apply, the amount of any gain or loss
A. 10030 374
includible in entire net income shall be adjusted to reflect the modifi-
cations provided in such subdivisions attributable to such property.
(e) Related members expense add back. (1) Definitions. (A) Related
member. "Related member" means a related person as defined in subpara-
graph (c) of paragraph three of subsection (b) of section four hundred
sixty-five of the internal revenue code, except that "fifty percent"
shall be substituted for "ten percent".
(B) Effective rate of tax. "Effective rate of tax" means, as to any
city, the maximum statutory rate of tax imposed by the city on or meas-
ured by a related member's net income multiplied by the apportionment
percentage, if any, applicable to the related member under the laws of
said jurisdiction. For purposes of this definition, the effective rate
of tax as to any city is zero where the related member's net income tax
liability in said city is reported on a combined or consolidated return
including both the taxpayer and the related member where the reported
transactions between the taxpayer and the related member are eliminated
or offset. Also, for purposes of this definition, when computing the
effective rate of tax for a city in which a related member's net income
is eliminated or offset by a credit or similar adjustment that is
dependent upon the related member either maintaining or managing intan-
gible property or collecting interest income in such city, the maximum
statutory rate of tax imposed by such city shall be decreased to reflect
the statutory rate of tax that applies to the related member as effec-
tively reduced by such credit or similar adjustment.
(C) Royalty payments. Royalty payments are payments directly connected
to the acquisition, use, maintenance or management, ownership, sale,
exchange, or any other disposition of licenses, trademarks, copyrights,
trade names, trade dress, service marks, mask works, trade secrets,
patents and any other similar types of intangible assets as determined
by the commissioner of finance, and include amounts allowable as inter-
est deductions under section one hundred sixty-three of the internal
revenue code to the extent such amounts are directly or indirectly for,
related to or in connection with the acquisition, use, maintenance or
management, ownership, sale, exchange or disposition of such intangible
assets.
(D) Valid business purpose. A valid business purpose is one or more
business purposes, other than the avoidance or reduction of taxation,
which alone or in combination constitute the primary motivation for some
business activity or transaction, which activity or transaction changes
in a meaningful way, apart from tax effects, the economic position of
the taxpayer. The economic position of the taxpayer includes an increase
in the market share of the taxpayer, or the entry by the taxpayer into
new business markets.
(2) Royalty expense add backs. (A) For the purpose of computing unin-
corporated business entire net income, a taxpayer must add back royalty
payments directly or indirectly paid, accrued, or incurred in connection
with one or more direct or indirect transactions with one or more
related members during the taxable year to the extent deductible in
calculating federal taxable income.
(B) Exceptions. (i) The adjustment required in this subdivision shall
not apply to the portion of the royalty payment that the taxpayer estab-
lishes, by clear and convincing evidence of the type and in the form
specified by the commissioner of finance, meets all of the following
requirements: (I) the related member was subject to tax in this city or
another city within the United States or a foreign nation or some combi-
nation thereof on a tax base that included the royalty payment paid,
A. 10030 375
accrued or incurred by the taxpayer; (II) the related member during the
same taxable year directly or indirectly paid, accrued or incurred such
portion to a person that is not a related member; and (III) the trans-
action giving rise to the royalty payment between the taxpayer and the
related member was undertaken for a valid business purpose.
(ii) The adjustment required in this subdivision shall not apply if
the taxpayer establishes, by clear and convincing evidence of the type
and in the form specified by the commissioner of finance, that: (I) the
related member was subject to tax on or measured by its net income in
this city or another city within the United States, or some combination
thereof; (II) the tax base for said tax included the royalty payment
paid, accrued or incurred by the taxpayer; and (III) the aggregate
effective rate of tax applied to the related member in those jurisdic-
tions is no less than eighty percent of the statutory rate of tax that
applied to the taxpayer under section 11-503 of this chapter for the
taxable year.
(iii) The adjustment required in this subdivision shall not apply if
the taxpayer establishes, by clear and convincing evidence of the type
and in the form specified by the commissioner of finance, that: (I) the
royalty payment was paid, accrued or incurred to a related member organ-
ized under the laws of a country other than the United States; (II) the
related member's income from the transaction was subject to a comprehen-
sive income tax treaty between such country and the United States; (III)
the related member was subject to tax in a foreign nation on a tax base
that included the royalty payment paid, accrued or incurred by the
taxpayer; (IV) the related member's income from the transaction was
taxed in such country at an effective rate of tax at least equal to that
imposed by this city; and (V) the royalty payment was paid, accrued or
incurred pursuant to a transaction that was undertaken for a valid busi-
ness purpose and using terms that reflect an arm's length relationship.
(iv) The adjustment required in this subdivision shall not apply if
the taxpayer and the commissioner of finance agree in writing to the
application or use of alternative adjustments or computations. The
commissioner of finance may, in his or her discretion, agree to the
application or use of alternative adjustments or computations when he or
she concludes that in the absence of such agreement the income of the
taxpayer would not be properly reflected.
(f) Upon the disposition of property to which subdivisions (w) and (x)
of section 11-507 of this chapter apply, the amount of any gain or loss
includible in unincorporated business gross income shall be adjusted to
reflect the modifications provided in such subdivisions attributable to
such property.
§ 11-507 Unincorporated business deductions. The unincorporated busi-
ness deductions of an unincorporated business means the items of loss
and deduction directly connected with or incurred in the conduct of the
business, which are allowable for federal income tax purposes for the
taxable year, including losses and deductions connected with any proper-
ty employed in the business, with the following modifications:
(a) A deduction shall be allowed for charitable contributions of the
unincorporated business, to the extent that such contributions would be
deductible for federal income tax purposes if made by a corporation, but
not in excess of five per centum of the amount by which the unincorpo-
rated business gross income exceeds the sum of (A) the unincorporated
business deductions computed without the benefit of any deduction for
charitable contributions and (B) the deduction allowed under subdivision
A. 10030 376
(b) of section 11-509 of this chapter, where the election permitted by
such subdivision has been exercised.
(b) (1) A deduction shall be allowed for net operating losses incurred
by the unincorporated business, except as otherwise provided by para-
graph two of this subdivision, in an amount computed in the same manner
as the net operating loss deduction which would be allowed for the taxa-
ble year for federal income tax purposes if the unincorporated business
were an individual taxpayer, but determined solely by reference to the
unincorporated business gross income and unincorporated business
deductions, allocated to the city, of the unincorporated business;
provided, however, that such net operating loss deduction which would be
allowed for the taxable year for federal income tax purposes shall for
purposes of this paragraph be determined as if the unincorporated busi-
ness had elected under section one hundred seventy-two of the internal
revenue code to relinquish the entire carryback period with respect to
net operating losses, except with respect to the first ten thousand
dollars of each of such losses, sustained during taxable years ending
after June thirtieth, nineteen hundred eighty-nine. Such deduction shall
not include any net operating loss sustained during any taxable year
beginning prior to January first, nineteen hundred sixty-six and for the
purposes of this paragraph a net operating loss shall be determined
without regard to any deductions allowed pursuant to subdivision (b) of
section 11-509 of this chapter and any net operating loss for a taxable
year beginning in nineteen hundred eighty-one shall be computed without
regard to the deduction allowed with respect to recovery property under
section one hundred sixty-eight of the internal revenue code; in lieu of
such deduction, a taxpayer shall be allowed for such taxable year with
respect to such property the depreciation deduction allowable under
section one hundred sixty-seven of such internal revenue code as such
section was in full force and effect on December thirty-first, nineteen
hundred eighty.
(2) In the case of a partnership, no net operating loss carryback or
carryover to any taxable year shall be allowed unless one or more of the
partners during such taxable year were persons having a proportionate
interest or interests, amounting to at least eighty percent of all such
interests, in the unincorporated business gross income and unincorporat-
ed business deductions of the partnership which sustained the loss for
which a carryback or carryover is claimed. In such event, the carryback
or carryover allowable on account of such loss shall not exceed the
percentage of the amount otherwise allowable, determined by dividing (A)
the sum of the proportionate interests in the unincorporated business
gross income and unincorporated business deductions of the partnership,
for the year to which the loss is carried back or carried over, attrib-
utable to such partners, by (B) the sum of such proportionate interests
owned by all partners for such taxable year. The amount by which the
carryback or carryover otherwise allowable exceeds the amount allowable
pursuant to the preceding sentence shall not be a carryback or carryover
to any other taxable year.
(3) Notwithstanding any other provision of this chapter to the contra-
ry, for taxable years beginning before January first, two thousand twen-
ty-one, any amendment to section one hundred seventy-two of the internal
revenue code made after March first, two thousand twenty shall not apply
to this chapter.
(c) No deduction shall be allowed, except as provided in section
11-509 of this chapter for amounts paid or incurred to a proprietor or
partner for services or for use of capital.
A. 10030 377
(d) No deduction shall be allowed for income taxes imposed by the
city, this state or any other taxing jurisdiction, or the tax imposed by
article thirteen-A of the tax law.
(e) No deduction shall be allowed for (A) interest on indebtedness
incurred or continued to purchase or carry obligations or securities the
interest on which is exempt from tax under this chapter; (B) expenses
paid or incurred for the production or collection of such income or the
management, conservation or maintenance of property held for the
production of such income; or (C) the amortizable bond premium on any
bond the interest income from which is so exempt.
(f) No deduction shall be allowed in respect of the excess of net
long-term capital gain over net short-term capital loss, but capital
losses incurred in the unincorporated business shall be treated as ordi-
nary losses and shall be allowed in full.
(g) In the case of a taxpayer who has exercised the election permitted
by subdivision (b) of section 11-509 of this chapter, no deduction shall
be allowed for expenditures with reference to the property to which such
election relates, or for depreciation of such property, except as
permitted by said subdivision.
(h) A deduction shall be allowed, to the extent not allowable for
federal income tax purposes, for (A) interest on indebtedness incurred
or continued to purchase or carry obligations or securities the interest
on which is subject to tax under this chapter but exempt from federal
income tax; (B) ordinary and necessary expenses paid or incurred during
the taxable year for the production or collection of such income or the
management, conservation or maintenance of property held for the
production of such income; and (C) the amortizable bond premium for the
taxable year on any bond the interest on which is subject to tax under
this chapter but exempt from federal income tax.
(i) At the election of the taxpayer, a deduction shall be allowed for
expenditures paid or incurred during the taxable year for the
construction, reconstruction, erection or improvement of industrial
waste treatment facilities and air pollution control facilities.
(1) (A) The term "industrial waste treatment facilities" shall mean
facilities for the treatment, neutralization or stabilization of indus-
trial waste, as the term "industrial waste" is defined in section
17-0105 of the environmental conservation law, from a point immediately
preceding the point of such treatment, neutralization or stabilization
to the point of disposal, including the necessary pumping and transmit-
ting facilities, but excluding such facilities installed for the primary
purpose of salvaging materials which are usable in the manufacturing
process or are marketable.
(B) The term "air pollution control facilities" shall mean facilities
which remove, reduce, or render less noxious air contaminants emitted
from an air contamination source, as the terms "air contaminant" and
"air contamination source" are defined in section 19-0107 of the envi-
ronmental conservation law, from a point immediately preceding the point
of such removal, reduction or rendering to the point of discharge of
air, meeting emission standards as established by the air pollution
control board, but excluding such facilities installed for the primary
purpose of salvaging materials which are usable in the manufacturing
process or are marketable and excluding those facilities which rely for
their efficacy on dilution, dispersion or assimilation of air contam-
inants in the ambient air after emission.
(2) However, such deduction shall be allowed only (A) with respect to
tangible property which is depreciable, pursuant to section one hundred
A. 10030 378
sixty-seven of the internal revenue code, having a situs in the city and
used in the taxpayer's trade or business, the construction, recon-
struction, erection or improvement of which, in the case of industrial
waste treatment facilities, is initiated on or after January first,
nineteen hundred sixty-six, and only for expenditures paid or incurred
prior to January first, nineteen hundred seventy-two, or which, in the
case of air pollution control facilities, is initiated on or after Janu-
ary first, nineteen hundred sixty-six, and
(B) on condition that such facilities have been certified by the state
commissioner of environmental conservation or his or her designated
representative, in the same manner as provided in either section 17-0707
or 19-0309 of the environmental conservation law, as applicable, as
complying with the provision of the environmental conservation law, the
sanitary code and regulations, permits or orders promulgated pursuant
thereto, and
(C) on condition that for the taxable year and all succeeding taxable
years, no deduction for such expenditures or for depreciation of the
same property allowed for federal income tax purposes shall be allowed
under this chapter, except to the extent that the basis of the property
may be attributable to factors other than such expenditures, or in case
a deduction is allowable pursuant to this subdivision, for only a part
of such expenditures, on condition that any deduction allowed for feder-
al income tax purposes for such expenditures or for depreciation of the
same property be proportionately reduced in computing unincorporated
business deductions for the taxable year and all succeeding taxable
years, and
(D) where the election provided for in subdivision (b) of section
11-509 of this chapter has not been exercised in respect to the same
property.
(3) (A) If expenditures in respect to an industrial waste treatment
facility or an air pollution control facility have been deducted as
provided herein and if within ten years from the end of the taxable year
in which such deduction was allowed such property or any part thereof is
used for the primary purpose of salvaging materials which are usable in
the manufacturing process or are marketable, the taxpayer shall report
such change of use in its return for the first taxable year during which
it occurs, and the commissioner of finance may recompute the tax for the
year or years for which such deduction was allowed and any carryback or
carryover year, and may assess any additional tax resulting from such
recomputation within the time fixed by paragraph eight of subdivision
(c) of section 11-523 of this chapter.
(B) If a deduction is allowed as herein provided for expenditures paid
or incurred during any taxable year on the basis of a temporary certif-
icate of compliance issued pursuant to the public health law, and if the
taxpayer fails to obtain a permanent certificate of compliance upon
completion of the facilities with respect to which such temporary
certificate was issued, the taxpayer shall report such failure in its
report for the taxable year during which such facilities are completed,
and the commissioner of finance may recompute the tax for the year or
years for which such deduction was allowed and any carryback or carry-
over year, and may assess any additional tax resulting from such recom-
putation within the time fixed by paragraph eight of subdivision (c) of
section 11-523 of this chapter.
(4) In any taxable year when property is sold or otherwise disposed
of, with respect to which a deduction has been allowed pursuant to this
subdivision, such deduction shall be disregarded in computing gain or
A. 10030 379
loss, and the gain or loss on the sale or other disposition of such
property shall be the gain or loss allowable for federal income tax
purposes for such taxable year.
(j) In the case of mines, oil and gas wells and other natural depos-
its, no deduction of any allowance for percentage depletion pursuant to
section six hundred thirteen or section six hundred thirteen A of the
internal revenue code of nineteen hundred fifty-four, as amended, shall
be allowed. However, an allowance for depletion with respect to such
property shall be deductible in the amount which would be allowable
under section six hundred eleven of such internal revenue code if such
deduction were computed without reference to such section six hundred
thirteen or section six hundred thirteen A of such code. With respect to
the computation of depletion pursuant to this section, the basis for
such computation for taxable years beginning in nineteen hundred seven-
ty-two shall be the federal basis. For subsequent taxable years, the
basis of such computation shall be reduced only by the deduction for the
allowance for depletion deductible pursuant to this section. In any
taxable year when any such property is sold or otherwise disposed of,
with respect to which a deduction has been allowed pursuant to this
subdivision, the gain or loss thereon entering into the computation of
federal taxable income shall be disregarded in computing unincorporated
business taxable income and there shall be added to or subtracted from
federal gross income, so modified, the gain or loss upon such sale or
other disposition. In computing such gain or loss, the basis of the
property sold or disposed of shall be adjusted to reflect the deduction
allowed with respect to such property pursuant to this subdivision.
(k) A deduction shall be allowed for that portion of wages and sala-
ries paid or incurred for the taxable year for which a deduction is not
allowed pursuant to the provisions of section two hundred eighty-C of
the internal revenue code.
(l) For taxable years beginning after December thirty-first, nineteen
hundred eighty-one, except with respect to property which is a qualified
mass commuting vehicle described in subparagraph (D) of paragraph eight
of subsection (f) of section one hundred sixty-eight of the internal
revenue code, relating to qualified mass commuting vehicles, a deduction
shall be allowed for any amount which the taxpayer could have excluded
for purposes of this chapter had it not made the election provided for
in such paragraph eight as it was in effect for agreements entered into
prior to January first, nineteen hundred eighty-four.
(m) For taxable years beginning after December thirty-first, nineteen
hundred eighty-one, except with respect to property which is a qualified
mass commuting vehicle described in subparagraph (D) of paragraph eight
of subsection (f) of section one hundred sixty-eight of the internal
revenue code, relating to qualified mass commuting vehicles, no
deduction shall be allowed for any amount deductible for federal income
tax purposes solely as a result of an election made pursuant to the
provisions of such paragraph eight as it was in effect for agreements
entered into prior to January first, nineteen hundred eighty-four.
(n) In the case of property placed in service in taxable years begin-
ning before nineteen hundred ninety-four, for taxable years beginning
after December thirty-first, nineteen hundred eighty-one, except with
respect to property subject to the provisions of section two hundred
eighty-F of the internal revenue code and property subject to the
provisions of section one hundred sixty-eight of the internal revenue
code which is placed in service in this state in taxable years beginning
after December thirty-first, nineteen hundred eighty-four, no deduction
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shall be allowed for the amount allowable as a deduction determined
under section one hundred sixty-eight of the internal revenue code.
(o) In the case of property placed in service in taxable years begin-
ning before nineteen hundred ninety-four, for taxable years beginning
after December thirty-first, nineteen hundred eighty-one, except with
respect to property subject to the provisions of section two hundred
eighty-F of the internal revenue code and property subject to the
provisions of section one hundred sixty-eight of the internal revenue
code which is placed in service in this state in taxable years beginning
after December thirty-first, nineteen hundred eighty-four, and provided
a deduction has not been disallowed pursuant to subdivision (m) of this
section, a taxpayer shall be allowed with respect to property which is
subject to the provisions of section one hundred sixty-eight of the
internal revenue code the depreciation deduction allowable under section
one hundred sixty-seven of the internal revenue code as such section
would have applied to property placed in service on December thirty-
first, nineteen hundred eighty.
(p) Notwithstanding any other provision of this chapter to the contra-
ry, no deduction shall be allowed for interest, depreciation or any
other expense directly or indirectly attributable to the holding, leas-
ing or managing of real property or to income or gain therefrom if, and
to the extent that, such holding, leasing or managing of real property
is not deemed an unincorporated business carried on by the taxpayer
pursuant to the provisions of subdivision (d) of section 11-502 of this
chapter.
(q) Notwithstanding any other provision of this chapter to the contra-
ry, no deduction shall be allowed for any expenses directly or indirect-
ly attributable to activities described in paragraph two of subdivision
(c) of section 11-502 of this chapter if, and to the extent that, such
activities are not deemed an unincorporated business carried on by the
taxpayer pursuant to the provisions of subdivision (c) of section 11-502
of this chapter.
(r) Notwithstanding any other provision of this chapter to the contra-
ry, in the case of a taxpayer that is an unincorporated entity described
in subparagraph (B) of paragraph four of subdivision (c) of section
11-502 of this chapter, no deduction shall be allowed for any losses or
expenses directly or indirectly attributable to the sale or other dispo-
sition of an interest in another unincorporated entity if, and to the
extent that, such losses or expenses are attributable to activities of
such other unincorporated entity not deemed an unincorporated business
carried on by the taxpayer pursuant to the provisions of subdivision (c)
of section 11-502 of this chapter.
(s) Notwithstanding any other provision of this chapter to the contra-
ry, no deduction shall be allowed for interest, depreciation or any
other expense directly or indirectly attributable to the provision by an
owner, lessee or fiduciary holding, leasing or managing real property of
the service of parking, garaging or storing of motor vehicles on a
monthly or longer term basis to tenants at such real property if, and to
the extent that, the provision of such services to such tenants is not
deemed an unincorporated business pursuant to the provisions of subdivi-
sion (d) of section 11-502 of this chapter.
(t) For taxable years ending after September tenth, two thousand one,
in the case of qualified property described in paragraph two of
subsection k of section one hundred sixty-eight of the internal revenue
code, other than qualified New York Liberty Zone property described in
paragraph two of subsection b of section fourteen hundred L of the
A. 10030 381
internal revenue code, without regard to clause (i) of subparagraph (C)
of such paragraph, no deduction shall be allowed for the amount allow-
able as a deduction under section one hundred sixty-seven of the inter-
nal revenue code.
(u) For taxable years ending after September tenth, two thousand one,
in the case of qualified property described in paragraph two of
subsection k of section one hundred sixty-eight of the internal revenue
code other than qualified New York Liberty Zone property described in
paragraph two of subsection b of section fourteen hundred L of the
internal revenue code, without regard to clause (i) of subparagraph (C)
of such paragraph, a deduction shall be allowed with respect to such
property equal to the depreciation deduction allowable under section one
hundred sixty-seven of the internal revenue code as such section would
have applied to such property had it been acquired by the taxpayer on
September tenth, two thousand one, provided, however, that for taxable
years beginning on or after January first, two thousand four, in the
case of a passenger motor vehicle or a sport utility vehicle subject to
the provisions of subdivision (w) of this section, the limitation under
clause (i) of subparagraph (A) of paragraph one of subdivision (a) of
section two hundred eighty-F of the internal revenue code applicable to
the amount allowed as a deduction under this paragraph shall be deter-
mined as of the date such vehicle was placed in service and not as of
September tenth, two thousand one.
(v) For taxable years beginning on or after January first, two thou-
sand four, in the case of a taxpayer that is not an eligible farmer as
defined in subsection (n) of section six hundred six of the tax law, no
deduction shall be allowed for the amounts allowable as a deduction
under sections one hundred seventy-nine, one hundred sixty-seven and one
hundred sixty-eight of the internal revenue code with respect to a sport
utility vehicle that is not a passenger automobile as defined in para-
graph five of subsection (d) of section two hundred eighty-F of the
internal revenue code.
(w) For taxable years beginning on or after January first, two thou-
sand four, in the case of a taxpayer that is not an eligible farmer as
defined in subsection (n) of section six hundred six of the tax law, a
deduction shall be allowed with respect to a sport utility vehicle that
is not a passenger automobile as defined in paragraph five of subsection
(d) of section two hundred eighty-F of the internal revenue code equal
to the amounts allowable as a deduction under sections one hundred
seventy-nine, one hundred sixty-seven and one hundred sixty-eight of the
internal revenue code, determined as if such sport utility vehicle were
a passenger automobile as defined in such paragraph five.
§ 11-508 Allocation to the city. (a) General; allocation of business
income. If an unincorporated business is carried on both within and
without the city, as determined under regulations of the commissioner of
finance, there shall be allocated to the city, in the manner provided in
subdivision (b), (c) or (d) of this section, a fair and equitable
portion of its business income. For taxable years beginning before July
first, nineteen hundred ninety-six, if the unincorporated business has
no regular place of business outside the city, all of such business
income shall be allocated to the city.
(b) (1) Allocation by taxpayer's books. For taxable years beginning
before January first, two thousand five, the portion allocable to the
city may be determined from the books of the business if the methods
used in keeping such books are approved by the commissioner of finance
as fairly and equitably reflecting the income from the city.
A. 10030 382
(2)(i) If a taxpayer determines the portion of business income to be
allocated to the city using the method prescribed in paragraph one of
this subdivision on a timely filed original return with respect to each
of the two taxable years, each of which must consist of twelve months,
immediately preceding the taxpayer's first taxable year beginning on or
after January first, two thousand five, the taxpayer may make a one-time
election to continue to use that method for taxable years beginning on
or after January first, two thousand five and before January first, two
thousand twelve. Such election shall be made by using the method
prescribed in paragraph one of this subdivision on an original timely
filed return with respect to the first taxable year beginning on or
after January first, two thousand five and before January first, two
thousand six. Such election may not be made, or if made, shall be deemed
revoked as of the beginning of the taxable year if, for either of the
two taxable years immediately preceding the year in which the election
is made, the commissioner of finance has determined the methods used in
keeping such books do not fairly and equitably reflect the income from
the city.
(ii) (A) A taxpayer that has made the election provided for in subpar-
agraph (i) of this paragraph may revoke it by filing an original or
amended return using an allocation method permitted by this section
other than the method prescribed in paragraph one of this subdivision
unless the commissioner of finance has determined that such method does
not fairly and equitably reflect the income from the city.
(B) The election provided for in subparagraph (i) of this paragraph
shall be deemed to have been revoked as of the beginning of the taxable
year if, for any taxable year during which the election is intended to
be in effect, the commissioner of finance has determined that the meth-
ods used in keeping the taxpayer's books do not fairly and equitably
reflect the income from the city.
(C) In the case of a taxpayer that is a partnership or other unincor-
porated entity, the election provided for in subparagraph (i) of this
paragraph shall be deemed to have been revoked as of the beginning of
the taxable year unless one or more of the persons having a propor-
tionate interest or interests, amounting to more than fifty percent of
all such interests, in the taxpayer's unincorporated business gross
income and unincorporated business deductions for such taxable year were
persons having a proportionate interest or interests, amounting to more
than fifty percent of all such interests, in the taxpayer's unincorpo-
rated business gross income and unincorporated business deductions at
the end of the taxpayer's last taxable year beginning before January
first, two thousand five. For purposes of this clause, a transfer of an
ownership interest in unincorporated business gross income or unincorpo-
rated business deductions upon the death of a partner or owner to such
deceased partner's or owner's estate shall be disregarded but transfers
by such decedent's estate shall not be disregarded.
(D) Once the election provided for in subparagraph (i) of this para-
graph has been revoked by the taxpayer pursuant to clause (A) or deemed
revoked pursuant to clauses (B) or (C) of this subparagraph, the taxpay-
er shall be barred from using the method prescribed in paragraph one of
this subdivision for the taxable year in which the election has been
revoked or deemed revoked and any subsequent taxable year.
(c) Allocation by formula. If subdivision (b) does not apply to the
taxpayer, the portion allocable to the city shall be determined by
multiplying (A) the business income by (B) a business allocation
percentage to be determined by adding together the percentages computed
A. 10030 383
under paragraphs one, two and three of this subdivision, and dividing
the result by the number of percentages; provided, however, that for
taxable years beginning on or after July first, nineteen hundred nine-
ty-six, a taxpayer that is a "manufacturing business," as defined in
subdivision (g) of this section, may determine its business allocation
percentage as provided in such subdivision (g):
(1) Property percentage. The percentage computed by dividing (A) the
average of the value, at the beginning and end of the taxable year, of
real and tangible personal property connected with the unincorporated
business and located within the city, by (B) the average of the value,
at the beginning and end of the taxable year, of all real and tangible
personal property connected with the unincorporated business and located
both within and without the city. For this purpose, for taxable years
beginning before January first, two thousand five, real property shall
include real property rented to the unincorporated business and, for
this purpose, for taxable years beginning on and after January first,
two thousand five, real and tangible personal property shall include
real and tangible personal property rented to the unincorporated busi-
ness and the value of such real and tangible personal property rented to
the unincorporated business shall mean the product of (i) eight and (ii)
the gross rents payable for the rental of such property during the taxa-
ble year.
(2) Payroll percentage. The percentage computed by dividing (A) the
total wages, salaries and other personal service compensation paid or
incurred during the taxable year to employees in connection with the
unincorporated business carried on within the city, by (B) the total of
all wages, salaries and other personal service compensation paid or
incurred during the taxable year to employees in connection with the
unincorporated business carried on both within and without the city.
(3) Gross income percentage. The percentage computed by dividing (A)
the gross sales or charges for services performed by or through an agen-
cy located within the city, by (B) the total of all gross sales or
charges for services performed within and without the city. The sales or
charges to be allocated to the city shall include all sales negotiated
or consummated, and charges for services performed, by an employee,
agent, agency or independent contractor chiefly situated at, connected
by contract or otherwise with, or sent out from, offices of the unincor-
porated business, or other agencies, situated within the city; provided,
however, that for taxable years beginning on or after July first, nine-
teen hundred ninety-six, sales of tangible personal property shall not
be allocated to the city as provided in this paragraph, but shall be
allocated to the city only where shipments are made to points within the
city, and provided, further, that:
(A) for taxable years beginning on or after July first, two thousand
five, for taxpayers having gross receipts for the taxable year, deter-
mined without regard to any deductions, of less than one hundred thou-
sand dollars, charges for services performed shall be allocated to the
city to the extent that the services are performed within the city;
(B) for taxable years beginning on or after July first, two thousand
six, for taxpayers having gross receipts for the taxable year, deter-
mined without regard to any deductions, of less than three hundred thou-
sand dollars, charges for services performed shall be allocated to the
city to the extent that the services are performed within the city; and
(C) for taxable years beginning on or after July first, two thousand
seven, for all other taxpayers, charges for services performed shall be
A. 10030 384
allocated to the city to the extent that the services are performed
within the city.
(d) Other allocation methods. The portion allocable to the city shall
be determined in accordance with rules and regulations of the commis-
sioner of finance if it shall appear to the commissioner of finance that
the income from the city is not fairly and equitably reflected under the
provisions of either subdivision (b) or subdivision (c) of this section.
(e) Special rules for real estate. Income and deductions from the
rental of real property, and gain and loss from the sale, exchange or
other disposition of real property, shall not be subject to allocation
under subdivision (b), (c), or (d) of this section, but shall be consid-
ered as entirely derived from or connected with the state, other than
this state, in which such property is located or, if such property is
located in this state, the political subdivision thereof. To the extent
that anything in this subdivision is inconsistent with any provision of
subdivision (d) of section 11-502, subdivision (c) of section 11-506 or
subdivision (p) of section 11-507 of this chapter, the provisions of
such subdivisions shall take precedence over the provisions of this
subdivision.
(e-1) Special rules for publishers and broadcasters. (1) Notwithstand-
ing anything in paragraph three of subdivision (c) of this section to
the contrary and except as provided in paragraph four of this subdivi-
sion, in the case of a taxpayer engaged in the business of publishing
newspapers or periodicals, there shall be allocated to the city, for
purposes of such paragraph three, the gross sales or charges for
services arising from sales of subscriptions to, and advertising
contained in, such newspapers or periodicals, to the extent that such
newspapers or periodicals are delivered to points within the city.
(2) Notwithstanding anything in paragraph three of subdivision (c) of
this section to the contrary and except as provided in paragraph four of
this subdivision, in the case of a taxpayer engaged in the business of
broadcasting radio or television programs, whether through the public
airwaves or by cable, direct or indirect satellite transmission, or any
other means of transmission, there shall be allocated to the city, for
purposes of such paragraph three, a portion of the gross sales or charg-
es for services arising from the sale of subscriptions to such programs
or from the broadcasting of such programs and of commercial messages in
connection therewith, such portion to be determined according to the
number of listeners or viewers within and without the city.
(3) Notwithstanding anything in this section, other than subdivision
(e) of this section, to the contrary, in the case of a taxpayer that is
substantially engaged, in the aggregate, in any combination of the busi-
nesses referred to in paragraphs one, two and four of this subdivision,
the portion of business income allocable to the city shall be determined
in accordance with the provisions of subdivision (c) of this section, as
modified by paragraphs one, two and four of this subdivision, unless the
commissioner of finance determines that the business income from the
city is not fairly and equitably reflected under the provisions of such
subdivision (c), in which event the provisions of subdivision (d) of
this section shall apply in determining the portion of business income
allocable to the city and the provisions of subdivision (b) of this
section shall not apply. For purposes of this subdivision, a taxpayer
shall be deemed to be substantially engaged in a business or businesses
referred to in such paragraphs one and two if more than ten percent of
the taxpayer's gross receipts for the taxable year are attributable to
such business or businesses.
A. 10030 385
(4) Notwithstanding anything in paragraph one or two of this subdivi-
sion to the contrary, for taxable years beginning on or after January
first, two thousand two, in the case of a taxpayer engaged in the busi-
ness of publishing newspapers or periodicals, or broadcasting radio or
television programs, whether through the public airwaves or by cable,
direct or indirect satellite transmission, or any other means of trans-
mission, there shall be allocated to the city, for purposes of paragraph
three of subdivision (c) of this section, the gross sales or charges to
subscribers located in the city for subscriptions to such newspapers,
periodicals, or program services. For purposes of this paragraph, a
subscriber shall be deemed located in the city if, in the case of news-
papers and periodicals, the mailing address for the subscription is
within the city and, in the case of program services, the billing
address for the subscription is within the city. For purposes of this
clause, "subscriber" shall mean a member of the general public who
receives such newspapers, periodicals or program services and does not
further distribute them.
(e-2) Rules for receipts from certain services to investment compa-
nies. (1) For taxable years beginning on or after January first, two
thousand one, for purposes of paragraph three of subdivision (c) of this
section, the portion of receipts received from an investment company
arising from the sale of management, administration or distribution
services to such investment company determined in accordance with para-
graph two of this subdivision shall be deemed to arise from services
performed within the city, such portion referred to herein as the Staten
Island city portion.
(2) The Staten Island city portion shall be the product of the total
of such receipts from the sale of such services and a fraction. The
numerator of that fraction is the sum of the monthly percentages, as
defined hereinafter, determined for each month of the investment compa-
ny's taxable year for federal income tax purposes which taxable year
ends within the taxable year of the taxpayer, but excluding any month
during which the investment company had no outstanding shares. The
monthly percentage for each such month is determined by dividing the
number of shares in the investment company which are owned on the last
day of the month by shareholders that are domiciled in the city by the
total number of shares in the investment company outstanding on that
date. The denominator of the fraction is the number of such monthly
percentages.
(3)(A) For purposes of this subdivision the term "domicile", in the
case of an individual shall have the meaning ascribed to it under chap-
ter seventeen of this title; an estate or trust is domiciled in the city
if it is a city resident estate or trust as defined in paragraph three
of subdivision (b) of section 11-1705 of the code of the proceeding
municipality; a business entity is domiciled in the city if the location
of the actual seat of management or control is in the city. It shall be
presumed that the domicile of a shareholder, with respect to any month,
is his, her or its mailing address on the records of the investment
company as of the last day of such month.
(B) For purposes of this subdivision, the term "investment company"
means a regulated investment company, as defined in section eight
hundred fifty-one of the internal revenue code, and a partnership to
which subdivision (a) of section seven thousand seven hundred four of
the internal revenue code applies, by virtue of paragraph three of
subdivision (c) of section seven thousand seven hundred four of such
code, and that meets the requirements of subdivision (b) of section
A. 10030 386
eight hundred fifty-one of such code. The provisions of this subpara-
graph shall be applied to the taxable year for federal income tax
purposes of the business entity that is asserted to constitute an
investment company that ends within the taxable year of the taxpayer.
(C) For purposes of this subdivision, the term "receipts from an
investment company" includes amounts received directly from an invest-
ment company as well as amounts received from the shareholders in such
investment company in their capacity as such.
(D) For purposes of this subdivision, the term "management services"
means the rendering of investment advice to an investment company,
making determinations as to when sales and purchases of securities are
to be made on behalf of an investment company, or the selling or
purchasing of securities constituting assets of an investment company,
and related activities, but only where such activity or activities are
performed pursuant to a contract with the investment company entered
into pursuant to subdivision (a) of section fifteen of the federal
investment company act of nineteen hundred forty, as amended.
(E) For purposes of this subdivision, the term "distribution services"
means the services of advertising, servicing investor accounts, includ-
ing redemptions, marketing shares or selling shares of an investment
company, but, in the case of advertising, servicing investor accounts,
including redemptions, or marketing shares, only where such service is
performed by a person who is, or was, in the case of a closed end compa-
ny, also engaged in the service of selling such shares. In the case of
an open end company, such service of selling shares must be performed
pursuant to a contract entered into pursuant to subdivision (b) of
section fifteen of the federal investment company act of nineteen
hundred forty, as amended.
(F) For purposes of this subdivision, the term "administration
services" includes clerical, accounting, bookkeeping, data processing,
internal auditing, legal and tax services performed for an investment
company but only if the provider of such service or services during the
taxable year in which such service or services are sold also sells
management or distribution services, as defined in this subdivision, to
such investment company.
(e-3) Rules for receipts for services performed by registered securi-
ties or commodities brokers or dealers. (1) For taxable years beginning
after two thousand eight, in the case of a taxpayer which is a regis-
tered securities or commodities broker or dealer, for purposes of para-
graph three of subdivision (c) of this section, the receipts specified
in subparagraphs (A) through (G) of this paragraph shall be deemed to
arise from services performed within the city to the extent set forth in
such subparagraphs.
(A) Receipts constituting brokerage commissions derived from the
execution of securities or commodities purchase or sales orders for the
accounts of customers shall be deemed to arise from services performed
at the mailing address in the records of the taxpayer of the customer
who is responsible for paying such commissions.
(B) Receipts constituting margin interest earned on behalf of broker-
age accounts shall be deemed to arise from services performed at the
mailing address in the records of the taxpayer of the customer who is
responsible for paying such margin interest.
(C) Gross income, including any accrued interest or dividends, from
principal transactions for the purchase or sale of stocks, bonds,
foreign exchange and other securities or commodities, including futures
and forward contracts, options and other types of securities or commod-
A. 10030 387
ities derivatives contracts, shall be deemed to arise from services
performed within the city either (i) to the extent that production cred-
its are awarded to branches, offices or employees of the taxpayer within
the city as a result of such principal transactions or (ii) if the
taxpayer so elects, to the extent that the gross proceeds from such
principal transactions, determined without deduction for any cost
incurred by the taxpayer to acquire the securities or commodities, are
generated from sales of securities or commodities to customers within
the city based upon the mailing addresses of such customers in the
records of the taxpayer. For purposes of clause (ii) of this subpara-
graph, the taxpayer shall separately calculate such gross income from
principal transactions by type of security or commodity. For purposes of
this subparagraph, gross income from principal transactions shall be
determined after the deduction of any cost incurred by the taxpayer to
acquire the securities or commodities. For purposes of this subdivision,
the term "production credits" means credits granted pursuant to the
internal accounting system used by the taxpayer to measure the amount of
revenue that should be awarded to a particular branch or office or
employee of the taxpayer which is based, at least in part, on the
branch's, the office's or the employee's particular activities. Upon
request, the taxpayer shall be required to furnish a detailed explana-
tion of such internal accounting system to the department.
(D) (i) Receipts constituting fees earned by the taxpayer for advisory
services to a customer in connection with the underwriting of securities
for such customer, such customer being the entity which is contemplating
issuing or is issuing securities, or fees earned by the taxpayer for
managing an underwriting shall be deemed to arise from services
performed at the mailing address in the records of the taxpayer of such
customer who is responsible for paying such fees.
(ii) Receipts constituting the primary spread or selling concession
from underwritten securities shall be deemed to arise from services
performed within the city to the extent that production credits are
awarded to branches, offices or employees of the taxpayer within the
city as a result of the sale of the underwritten securities.
(iii) The term "primary spread" means the difference between the price
paid by the taxpayer to the issuer of the securities being marketed and
the price received from the subsequent sale of the underwritten securi-
ties at the initial public offering price, less any selling concession
and any fees paid to the taxpayer for advisory services or any manager's
fees, if such fees are not paid by the customer to the taxpayer sepa-
rately. The term "public offering price" means the price agreed upon by
the taxpayer and the issuer at which the securities are to be offered to
the public. The term "selling concession" means the amount paid to the
taxpayer for participating in the underwriting of a security where the
taxpayer is not the lead underwriter.
(E) Receipts constituting interest earned by the taxpayer on loans and
advances made by the taxpayer to an entity affiliated with the taxpayer
shall be deemed to arise from services performed at the principal place
of business of such affiliated entity. For purposes of this subpara-
graph, an entity shall be considered affiliated with the taxpayer if
such entity and the taxpayer have eighty percent or more common direct
or indirect, actual or beneficial ownership.
(F) Receipts constituting account maintenance fees shall be deemed to
arise from services performed at the mailing address in the records of
the taxpayer of the customer who is responsible for paying such account
maintenance fees.
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(G) Receipts constituting fees for management or advisory services,
including fees for advisory services in relation to merger or acquisi-
tion activities, but excluding fees paid for services described in para-
graph one of subdivision (e-2) of this section, shall be deemed to arise
from services performed at the mailing address in the records of the
taxpayer of the customer who is responsible for paying such fees.
(2) For purposes of this subdivision, the term "securities" shall have
the same meaning as in paragraph two of subdivision (c) of section four
hundred seventy-five of the internal revenue code and the term "commod-
ities" shall have the same meaning as in paragraph two of subdivision
(e) of section four hundred seventy-five of such code. The term "regis-
tered securities or commodities broker or dealer" means a broker or
dealer registered as such by the securities and exchange commission or
the commodities futures trading commission, and shall include an OTC
derivatives dealer as defined under regulations of the securities and
exchange commission at title seventeen, part two hundred forty, section
3b-12 of the code of federal regulations (17 CFR 240.3b-12).
(3) If the taxpayer receives any of the receipts enumerated in para-
graph one of this subdivision as a result of a securities correspondent
relationship such taxpayer has with another registered securities or
commodities broker or dealer with the taxpayer acting in this relation-
ship as the clearing firm, such receipts shall be deemed to arise from
services performed within the city to the extent set forth in each of
the subparagraphs in paragraph one of this subdivision. The amount of
such receipts shall exclude the amount the taxpayer is required to pay
to the correspondent firm for such correspondent relationship. If the
taxpayer receives any of the receipts enumerated in paragraph one of
this subdivision as a result of a securities correspondent relationship
such taxpayer has with another registered securities or commodities
broker or dealer with the taxpayer acting in this relationship as the
introducing firm, such receipts shall be deemed to arise from services
performed within the city to the extent set forth in each of the subpar-
agraphs in paragraph one of this subdivision.
(4) If, for purposes of subparagraph (A), (B), (F), or (G) of para-
graph one of this subdivision, and clause (i) of subparagraph (C) of
paragraph one of this subdivision, the taxpayer is unable from its
records to determine the mailing address of the customer, the receipts
described in any of such subparagraphs and such clause shall be deemed
to arise from services performed at the branch or office of the taxpayer
that generates the transaction for the customer that generated such
receipts.
(f) Allocation of investment income. (1) The investment income of an
unincorporated business shall be allocated to the city by multiplying
such investment income by an investment allocation percentage to be
determined as follows:
(A) multiply the amount of its investment capital invested in each
stock, bond or other security, other than governmental securities,
during the period covered by its return by the issuer's allocation
percentage, determined as provided in paragraph two of this subdivision,
of the issuer or obligor thereof:
(B) add together the products so obtained; and
(C) divide the sum so obtained by the total of its investment capital
invested during such period in stocks, bonds and other securities;
provided, however, that in case any investment capital is invested in
any stock, bond or other security during only a portion of the period
covered by the return, only such portion of such capital shall be taken
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into account; and provided, further, that if a taxpayer's investment
allocation percentage is zero, interest received on bank accounts shall
be allocated in the manner provided in subdivision (b), (c) or (d) of
this section.
(2) (A) In the case of an issuer or obligor subject to tax under
subchapter two or three-A of chapter six of this title, or subject to
tax as a utility corporation under chapter eleven of this title, the
issuer's allocation percentage shall be the percentage of the appropri-
ate measure which is required to be allocated within the city on the
report or reports, if any, required of the issuer or obligor under chap-
ter six or eleven of this title for the preceding year. The appropriate
measure referred to in this subparagraph shall be: in the case of an
issuer or obligor subject to subchapter two of chapter six of this
title, entire capital; and in the case of an issuer or obligor subject
to chapter eleven of this title as a utility corporation, gross income.
(B) In the case of an issuer or obligor subject to tax under part four
of subchapter three of chapter six of this title, the issuer's allo-
cation percentage shall be determined as follows:
(i) In the case of a banking corporation described in paragraphs one
through eight of subdivision (a) of section 11-640 of this title which
is organized under the laws of the United States, this state or any
other state of the United States, the issuer's allocation percentage
shall be its alternative entire net income allocation percentage, as
defined in subdivision (c) of section 11-642 of this title, for the
preceding year. In the case of such a banking corporation whose alterna-
tive entire net income for the preceding year is derived exclusively
from business carried on within the city, its issuer's allocation
percentage shall be one hundred percent.
(ii) In the case of a banking corporation described in paragraph two
of subdivision (a) of section 11-640 of this title which is organized
under the laws of a country other than the United States, the issuer's
allocation percentage shall be determined by dividing (I) the amount
described in clause (i) of subparagraph (A) of paragraph two of subdivi-
sion (a) of section 11-642 of this title with respect to such issuer or
obligor for the preceding year, by (II) the gross income of such issuer
or obligor from all sources within and without the United States, for
such preceding year, whether or not included in alternative entire net
income for such year.
(iii) In the case of an issuer or obligor described in paragraph nine
of subdivision (a) or in paragraph two of subdivision (d) of section
11-640 of this title, the issuer's allocation percentage shall be deter-
mined by dividing the portion of the entire capital of the issuer or
obligor allocable to the city for the preceding year by the entire capi-
tal, wherever located, of the issuer or obligor for the preceding year.
(C) Provided, however, that if a report or reports for the preceding
year are not filed, or if filed do not contain information which would
permit the determination of such issuer's allocation percentage, then
the issuer's allocation percentage to be used shall, at the discretion
of the commissioner of finance, be either (i) the issuer's allocation
percentage derived from the most recently filed report or reports of the
issuer or obligor or (ii) a percentage calculated, by the commissioner
of finance, reasonably to indicate the degree of economic presence in
the city of the issuer or obligor during the preceding year.
(3) For purposes of this subdivision, investment capital shall be
determined by taking the average value of the gross assets included
therein, less liabilities deductible therefrom pursuant to the
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provisions of subdivision (h) of section 11-501 of this chapter. The
value of investment capital which consists of marketable securities
shall be the fair market value thereof and the value of investment capi-
tal other than marketable securities shall be the value thereof shown on
the books and records of the unincorporated business in accordance with
generally accepted accounting principles.
(g) Special rules for manufacturing businesses. (1) For taxable years
beginning on or after July first, nineteen hundred ninety-six and before
January first, two thousand eleven, a manufacturing business may elect
to determine its business allocation percentage by adding together the
percentages determined under paragraphs one, two and three of subdivi-
sion (c) of this section and an additional percentage equal to the
percentage determined under paragraph three of subdivision (c) of this
section, and dividing the result by the number of percentages so added
together.
(2) An election under this subdivision must be made on a timely filed
(determined with regard to extensions granted) original return for the
taxable year. Once made for a taxable year, such election shall be irre-
vocable for that taxable year. A separate election must be made for each
taxable year. A manufacturing business that has failed to make an
election as provided in this paragraph shall be required to determine
its business allocation percentage without regard to the provisions of
this subdivision. Notwithstanding anything in this paragraph to the
contrary, the commissioner of finance may permit a manufacturing busi-
ness to make or revoke an election under this subdivision, upon such
terms and conditions as the commissioner may prescribe, where the
commissioner determines that such permission should be granted in the
interests of fairness and equity due to a change in circumstances
resulting from an audit adjustment.
(3) As used in this subdivision, the term "manufacturing business"
means an unincorporated business primarily engaged in the manufacturing
and sale thereof of tangible personal property; and the term "manufac-
turing" includes the process, including the assembly process (i) of
working raw materials into wares suitable for use or (ii) which gives
new shapes, new qualities or new combinations to matter which already
has gone through some artificial process, by the use of machinery,
tools, appliances and other similar equipment. An unincorporated busi-
ness shall be deemed to be primarily engaged in the activities described
in the preceding sentence if more than fifty percent of its gross
receipts for the taxable year are attributable to such activities.
(h) Notwithstanding subdivision (d) of this section, if it shall
appear to the commissioner of finance that any business or investment
allocation percentage determined pursuant to this section does not prop-
erly reflect the activity, business, or income of a taxpayer within the
city, the commissioner of finance shall be authorized in his or her
discretion, in the case of a business allocation percentage, to adjust
it by (1) excluding one or more of the factors therein; (2) including
one or more 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 unincorporated business entire net income, or (4) any other
similar or different method calculated to effect a fair and proper allo-
cation of the income reasonably attributable to the city, and in the
case of an investment allocation percentage, to adjust it by excluding
one or more assets in computing such percentage; provided the income
therefrom is also excluded in determining unincorporated business entire
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net income. The commissioner of finance from time to time shall publish
all rulings of general public interest with respect to any application
of the provisions of this subdivision.
(i) Notwithstanding subdivision (c) of this section, but subject to
subdivision (g) of this section, the business allocation percentage
shall be computed in the manner set forth in this subdivision.
(1) For taxable years beginning in two thousand nine, the business
allocation percentage shall be determined by adding together the follow-
ing percentages:
(A) the product of thirty percent and the percentage determined under
paragraph one of subdivision (c) of this section,
(B) the product of thirty percent and the percentage determined under
paragraph two of subdivision (c) of this section, and
(C) the product of forty percent and the percentage determined under
paragraph three of subdivision (c) of this section.
(2) For taxable years beginning in two thousand ten, the business
allocation percentage shall be determined by adding together the follow-
ing percentages:
(A) the product of twenty-seven percent and the percentage determined
under paragraph one of subdivision (c) of this section,
(B) the product of twenty-seven percent and the percentage determined
under paragraph two of subdivision (c) of this section, and
(C) the product of forty-six percent and the percentage determined
under paragraph three of subdivision (c) of this section.
(3) For taxable years beginning in two thousand eleven, the business
allocation percentage shall be determined by adding together the follow-
ing percentages:
(A) the product of twenty-three and one-half percent and the percent-
age determined under paragraph one of subdivision (c) of this section,
(B) the product of twenty-three and one-half percent and the percent-
age determined under paragraph two of subdivision (c) of this section,
and
(C) the product of fifty-three percent and the percentage determined
under paragraph three of subdivision (c) of this section.
(4) For taxable years beginning in two thousand twelve, the business
allocation percentage shall be determined by adding together the follow-
ing percentages:
(A) the product of twenty percent and the percentage determined under
paragraph one of subdivision (c) of this section,
(B) the product of twenty percent and the percentage determined under
paragraph two of subdivision (c) of this section, and
(C) the product of sixty percent and the percentage determined under
paragraph three of subdivision (c) of this section.
(5) For taxable years beginning in two thousand thirteen, the business
allocation percentage shall be determined by adding together the follow-
ing percentages:
(A) the product of sixteen and one-half percent and the percentage
determined under paragraph one of subdivision (c) of this section,
(B) the product of sixteen and one-half percent and the percentage
determined under paragraph two of subdivision (c) of this section, and
(C) the product of sixty-seven percent and the percentage determined
under paragraph three of subdivision (c) of this section.
(6) For taxable years beginning in two thousand fourteen, the business
allocation percentage shall be determined by adding together the follow-
ing percentages:
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(A) the product of thirteen and one-half percent and the percentage
determined under paragraph one of subdivision (c) of this section,
(B) the product of thirteen and one-half percent and the percentage
determined under paragraph two of subdivision (c) of this section, and
(C) the product of seventy-three percent and the percentage determined
under paragraph three of subdivision (c) of this section.
(7) For taxable years beginning in two thousand fifteen, the business
allocation percentage shall be determined by adding together the follow-
ing percentages:
(A) the product of ten percent and the percentage determined under
paragraph one of subdivision (c) of this section,
(B) the product of ten percent and the percentage determined under
paragraph two of subdivision (c) of this section, and
(C) the product of eighty percent and the percentage determined under
paragraph three of subdivision (c) of this section.
(8) For taxable years beginning in two thousand sixteen, the business
allocation percentage shall be determined by adding together the follow-
ing percentages:
(A) the product of six and one-half percent and the percentage deter-
mined under paragraph one of subdivision (c) of this section,
(B) the product of six and one-half percent and the percentage deter-
mined under paragraph two of subdivision (c) of this section, and
(C) the product of eighty-seven percent and the percentage determined
under paragraph three of subdivision (c) of this section.
(9) For taxable years beginning in two thousand seventeen, the busi-
ness allocation percentage shall be determined by adding together the
following percentages:
(A) the product of three and one-half percent and the percentage
determined under paragraph one of subdivision (c) of this section,
(B) the product of three and one-half percent and the percentage
determined under paragraph two of subdivision (c) of this section, and
(C) the product of ninety-three percent and the percentage determined
under paragraph three of subdivision (c) of this section.
(10) For taxable years beginning after two thousand seventeen, the
business allocation percentage shall be the percentage determined under
paragraph three of subdivision (c) of this section.
(11) The commissioner shall promulgate rules necessary to implement
the provisions of this subdivision under such circumstances where any of
the percentages to be determined under paragraph one, two or three of
subdivision (c) of this section cannot be determined because the taxpay-
er has no property, payroll or gross receipts from sales or services
within or without the city.
§ 11-509 Deductions not subject to allocation. (a) In computing
unincorporated business taxable income, there shall be allowed, without
allocation under section 11-508 of this chapter, deductions for reason-
able compensation for taxable years beginning before January first, two
thousand seven, not in excess of five thousand dollars, and for taxable
years beginning on or after January first, two thousand seven, not in
excess of ten thousand dollars, for personal services of the proprietor
and each partner actively engaged in the unincorporated business, but
the aggregate of such deductions shall not exceed twenty per centum of
the unincorporated business taxable income computed without the benefit
of any deductions under this subdivision or the unincorporated business
exemptions under section 11-510 of this chapter.
(b) Subject to the conditions provided in paragraphs three and four of
this subdivision at the election of the taxpayer there shall also be
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allowed, without allocation under section 11-508 of this chapter, either
or both of the items set forth in paragraphs one and two of this subdi-
vision, except that only one of the items shall be allowed with respect
to any one item of property.
(1) Depreciation with respect to any property such as described in
paragraphs three or four of this subdivision, and subject to the condi-
tions provided therein, not exceeding twice the depreciation allowed
with respect to the same property for federal income tax purposes. Such
deduction shall be allowed only upon condition that no deduction shall
be allowed pursuant to section 11-507 of this chapter for depreciation
of the same property, and the total of all deductions allowed pursuant
to this paragraph in any taxable year or years with respect to any prop-
erty shall not exceed its cost or other basis and, in the case of an
unincorporated business carried on both within and without this city,
with respect to property described in paragraph four of this subdivi-
sion, such total shall not exceed its cost or other basis multiplied by
(A) the percentage of the excess of the taxpayer's unincorporated busi-
ness gross income over its unincorporated business deductions allocated
to this city, or (B) the percentage of the taxpayer's business income
allocated to this city, whichever is applicable, which percentage shall
be determined under section 11-508 of this chapter for the first year
such depreciation is deducted.
(2) Expenditures paid or incurred during the taxable year for the
construction, reconstruction, erection or acquisition of any property
such as described in paragraph three or four of this subdivision, and
subject to the conditions provided therein, which is used or to be used
for purposes of research or development in the experimental or laborato-
ry sense. Such purposes shall not be deemed to include the ordinary
testing or inspection of materials or products for quality control,
efficiency surveys, management studies, consumer surveys, advertising,
promotions or research in connection with literary, historical or simi-
lar projects. Such deduction shall be allowed only on condition that, in
the case of an unincorporated business carried on both within and with-
out this city, with respect to property described in paragraph four of
this subdivision, such deduction does not exceed the expenditures multi-
plied by (A) the percentage of the excess of the taxpayer's unincorpo-
rated business gross income over its unincorporated business deductions
allocated to this city, or (B) the percentage of the taxpayer's business
income allocated to this city, whichever is applicable, which percentage
shall be determined under section 11-508 of this chapter for the first
year such depreciation is deducted, and that, for the taxable year and
all succeeding taxable years, no deduction shall be allowed pursuant to
section 11-507 of this chapter on account of such expenditures or on
account of depreciation of the same property, except to the extent that
its basis may be attributable to factors other than such expenditures,
or in case a deduction is allowable pursuant to this paragraph for only
a part of such expenditures, on condition that any deduction allowable
for federal income tax purposes on account of such expenditures or on
account of depreciation of the same property shall be proportionately
reduced in determining the deductions allowable pursuant to section
11-507 of this chapter for the taxable year and all succeeding taxable
years. With respect to property which is used or to be used for research
and development only in part, or during only part of its useful life,
the deduction allowable pursuant to this paragraph shall be limited to a
proportionate part of the expenditures relating thereto. If a deduction
shall have been allowed pursuant to this paragraph for all or part of
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such expenditures with respect to any property, and such property is
used for purposes other than research and development to a greater
extent than originally reported, the taxpayer shall report such use in
the taxpayer's return for the first taxable year during which it occurs,
and the commissioner of finance may recompute the tax for the year or
years for which such deduction was allowed, and may assess any addi-
tional tax resulting from such recomputation within the time fixed by
subdivision (c) of section 11-523 of this chapter.
(3) For purposes of this paragraph, such deduction shall be allowed
only with respect to tangible property which is depreciable pursuant to
section one hundred sixty-seven of the internal revenue code, having a
situs in the city and used in the taxpayer's trade or business, (A)
constructed, reconstructed or erected after December thirty-first, nine-
teen hundred sixty-five, pursuant to a contract which was, on or before
December thirty-first, nineteen hundred sixty-seven, and at all times
thereafter, binding on the taxpayer or, property, the physical
construction, reconstruction or erection of which began on or before
December thirty-first, nineteen hundred sixty-seven or which began after
such date pursuant to an order placed on or before December thirty-
first, nineteen hundred sixty-seven, and then only with respect to that
portion of the basis thereof or the expenditure relating thereto which
is properly attributable to such construction, reconstruction or
erection after December thirty-first, nineteen hundred sixty-five, or
(B) acquired after December thirty-first, nineteen hundred sixty-five,
pursuant to a contract which was, on or before December thirty-first,
nineteen hundred sixty-seven, and at all times thereafter, binding on
the taxpayer or pursuant to an order placed on or before December thir-
ty-first, nineteen hundred sixty-seven, by purchase as defined in
section one hundred seventy-nine (d) of the internal revenue code, if
the original use of such property commenced with the taxpayer, commenced
in the city and commenced after December thirty-first, nineteen hundred
sixty-five or (C) acquired, constructed, reconstructed, or erected
subsequent to December thirty-first, nineteen hundred sixty-seven, if
such acquisition, construction, reconstruction or erection is pursuant
to a plan of the taxpayer which was in existence December thirty-first,
nineteen hundred sixty-seven and not thereafter substantially modified,
and such acquisition, construction, reconstruction or erection would
qualify under the rules in paragraph four, five or six of subsection (h)
of section forty-eight of the internal revenue code provided all refer-
ences in such paragraphs four, five and six to the dates October nine,
nineteen hundred sixty-six, and October ten, nineteen hundred sixty-six,
shall be read as December thirty-first, nineteen hundred sixty-seven. A
taxpayer shall be allowed a deduction under subparagraph (A), (B) or (C)
of this paragraph only if the tangible property shall be delivered or
the construction, reconstruction or erection shall be completed on or
before December thirty-first, nineteen hundred sixty-nine, except in the
case of tangible property which is acquired, constructed, reconstructed
or erected pursuant to a contract which was, on or before December thir-
ty-first, nineteen hundred sixty-seven, and at all times thereafter,
binding on the taxpayer. However, for any taxable year beginning on or
after January first, nineteen hundred sixty-eight, a taxpayer shall not
be allowed a deduction under paragraph one of this subdivision with
respect to tangible personal property leased to any other person or
corporation, provided, any contract or agreement to lease or rent or for
a license to use such property shall be considered a lease. With
respect to property which a taxpayer uses for purposes other than leas-
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ing for part of a taxable year and leases for a part of a taxable year,
a deduction under paragraph one of this subdivision may be taken in
proportion to the part of the year such property is used by the taxpay-
er.
(4) For purposes of this paragraph, such deductions shall be allowed
only with respect to tangible property which is depreciable pursuant to
section one hundred sixty-seven of the internal revenue code, having a
situs in this city and used in the taxpayer's trade or business, (A) the
construction, reconstruction, or erection of which is completed after
December thirty-first, nineteen hundred sixty-seven, and then only with
respect to that portion of the basis thereof or the expenditures relat-
ing thereto which is properly attributable to such construction, recon-
struction or erection after December thirty-first, nineteen hundred
sixty-three, or (B) acquired after December thirty-first, nineteen
hundred sixty-seven, by purchase as defined in section one hundred
seventy-nine (d) of the internal revenue code, if the original use of
such property commenced with the taxpayer, commenced in this city and
commenced after December thirty-first, nineteen hundred sixty-five.
Provided, however, a deduction under paragraph one of this subdivision
shall be allowed with respect to property described in this paragraph
only on condition that such property shall be principally used by the
taxpayer in the production of goods by manufacturing; processing; assem-
bling; refining; mining; extracting; farming; agriculture; horticulture;
floriculture; viticulture or commercial fishing, provided, manufacturing
shall mean the process of working raw materials into wares suitable for
use or which gives new shapes, new qualities or new combinations to
matter which already has gone through some artificial process by the use
of machinery, tools, appliances, and other similar equipment. Property
used in the production of goods shall include machinery, equipment or
other tangible property which is principally used in the repair and
service of other machinery, equipment or other tangible property used
principally in the production of goods and shall include all facilities
used in the manufacturing operation, including storage of material to be
used in manufacturing and of the products that are manufactured. At the
option of the taxpayer, air and water pollution control facilities which
qualify for elective deductions under subdivision (i) of section 11-507
of this chapter may be treated, for purposes of this paragraph, as
tangible property principally used in the production of goods by manu-
facturing; processing; assembling; refining; mining; extracting; farm-
ing; agriculture; horticulture; floriculture; viticulture or commercial
fishing, in which event, a deduction shall not be allowed under subdivi-
sion (i) of section 11-507 of this chapter. However, for any taxable
year beginning on or after January first, nineteen hundred sixty-eight,
a taxpayer shall not be allowed a deduction under paragraph one of this
subdivision with respect to tangible personal property leased to any
other person or corporation, provided, any contract or agreement to
lease or rent or for a license to use such property shall be considered
a lease. With respect to property which a taxpayer uses for purposes
other than leasing for part of a taxable year and leases for a part of a
taxable year, a deduction under paragraph one shall be allowed in
proportion to the part of the year such property is used by the taxpay-
er.
(5) If the deductions allowable for any taxable year pursuant to this
subdivision exceed the taxpayer's unincorporated business taxable
income, determined without the allowance of such deductions, the excess
may be carried over to the following taxable year or years and may be
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deducted, without allocation under section 11-508 of this chapter, in
computing unincorporated business taxable income for such year or years.
(6) In any taxable year when property is sold or otherwise disposed
of, with respect to which a deduction has been allowed pursuant to para-
graph one or two of this subdivision, the basis of such property shall
be adjusted to reflect the deductions so allowed, and if the basis as so
adjusted is lower than the adjusted basis of the same property for
federal income tax purposes, there shall be added to federal gross
income the amount of the difference between such adjusted bases.
§ 11-510 Unincorporated business exemptions. In computing unincorpo-
rated business taxable income, there shall be allowed, without allo-
cation under section 11-508 of this chapter:
(a) an unincorporated business exemption of five thousand dollars,
prorated for taxable years of less than twelve months under regulations
of the commissioner of finance;
(b) if a partner in an unincorporated business is taxable under this
chapter or under any local law imposed pursuant to section one of chap-
ter seven hundred seventy-two of the laws of nineteen hundred sixty-six,
an exemption for the amount of the partner's proportionate interest in
the excess of the unincorporated business gross income over the
deductions allowed under sections 11-507 and 11-509 of this chapter, but
this exemption shall be limited to the amount which is included in the
partner's unincorporated business taxable income allocable to the city,
or included in a corporate partner's net income allocable to the city,
provided, however, no such exemption shall be allowed to an unincorpo-
rated business for any taxable year of the unincorporated business
beginning after June thirtieth, nineteen hundred ninety-four.
§ 11-511 Declarations of estimated tax. (a) Requirement of declara-
tion. Except as provided in subdivision (j) of this section, every
unincorporated business shall make a declaration of its estimated tax
for the taxable year, containing such information as the commissioner of
finance may prescribe by regulations or instruction, if: (1) for taxable
years beginning after nineteen hundred eighty-six but before nineteen
hundred ninety-six, its unincorporated business taxable income can
reasonably be expected to exceed fifteen thousand dollars; (2) for taxa-
ble years beginning in nineteen hundred ninety-six, its unincorporated
business taxable income can reasonably be expected to exceed twenty
thousand dollars; (3) for taxable years beginning after nineteen hundred
ninety-six but before two thousand nine, its estimated tax can reason-
ably be expected to exceed one thousand eight hundred dollars; and (4)
for taxable years beginning after two thousand eight, its estimated tax
can reasonably be expected to exceed three thousand four hundred
dollars.
(b) Definition of estimated tax. The term "estimated tax" means the
amount which an unincorporated business estimates to be its tax under
this chapter for the taxable year, less the amount which it estimates to
be the sum of any credits allowable against the tax other than the cred-
it allowable under subdivision (c) of section 11-503 of this chapter.
(c) Time for filing declaration. Except as hereinafter provided, a
declaration of estimated tax required under this section shall be filed
on or before April fifteenth of the taxable year provided, however, that
if the requirements of subdivision (a) of this section are first met:
(1) after April first and before June second of the taxable year, the
declaration shall be filed on or before June fifteenth, or
(2) after June first and before September second of the taxable year,
the declaration shall be filed on or before September fifteenth, or
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(3) after September first of the taxable year, the declaration shall
be filed on or before January fifteenth of the succeeding year.
(d) Filing of declarations on or before January fifteenth.
(1) A declaration of estimated tax by an unincorporated business
having an estimated unincorporated business taxable income from farming,
including oyster farming, for the taxable year which is at least two-
thirds of its total estimated unincorporated business taxable income for
the taxable year may be filed at any time on or before January fifteenth
of the succeeding year.
(2) For taxable years beginning before nineteen hundred ninety-seven,
a declaration of estimated tax under this section of forty dollars or
less for the taxable year may be filed at any time on or before January
fifteenth of the succeeding year under regulations of the commissioner
of finance.
(e) Amendments of declaration. An unincorporated business may amend a
declaration under regulations of the commissioner of finance.
(f) Return as declaration or amendment. If on or before February
fifteenth of the succeeding taxable year an unincorporated business
subject to the estimated tax requirements of this section files its
return for the taxable year for which the declaration is required, and
pays on or before such date the full amount of the tax shown to be due
on the return:
(1) such return shall be considered as its declaration if no declara-
tion was required to be filed during the taxable year, but is otherwise
required to be filed on or before January fifteenth of the succeeding
year, and
(2) such return shall be considered as the amendment permitted by
subdivision (e) of this section to be filed on or before January
fifteenth if the tax shown on the return is greater than the estimated
tax shown in a declaration previously made.
(g) Fiscal year. This section shall apply to a taxable year other
than a calendar year by the substitution of the months of such fiscal
year for the corresponding months specified in this section.
(h) Short taxable year. An unincorporated business subject to the
estimated tax requirements of this section and having a taxable year of
less than twelve months shall make a declaration in accordance with
regulations of the commissioner of finance.
(i) Declaration of unincorporated business under a disability. The
declaration of estimated tax for an unincorporated business which is
unable to make a declaration for any reason shall be made and filed by
the committee, fiduciary or other person charged with the care of the
property of such unincorporated business, other than a receiver in
possession of only a part of such property, or by his or her duly
authorized agent.
(j) Declaration of estimated tax for taxable years beginning prior to
July thirteenth, nineteen hundred sixty-six. Notwithstanding subdivision
(c) of this section, no declaration of estimated tax required by subdi-
vision (a) of this section need be filed until September twelfth, nine-
teen hundred sixty-six.
§ 11-512 Payments of estimated tax. (a) General. The estimated tax
with respect to which a declaration is required shall be paid as
follows:
(1) If the declaration is filed on or before April fifteenth of the
taxable year, the estimated tax shall be paid in four equal install-
ments. The first installment shall be paid at the time of the filing of
the declaration, and the second, third and fourth installments shall be
A. 10030 398
paid on the following June fifteenth, September fifteenth, and January
fifteenth, respectively.
(2) If the declaration is filed after April fifteenth and not after
June fifteenth of the taxable year, and is not required to be filed on
or before April fifteenth of the taxable year, the estimated tax shall
be paid in three equal installments. The first installment shall be
paid at the time of the filing of the declaration, and the second and
third installments shall be paid on the following September fifteenth
and January fifteenth, respectively.
(3) If the declaration is filed after June fifteenth and not after
September fifteenth of the taxable year, and is not required to be filed
on or before June fifteenth of the taxable year, the estimated tax shall
be paid in two equal installments. The first installment shall be paid
at the time of the filing of the declaration, and the second shall be
paid on the following January fifteenth.
(4) If the declaration is filed after September fifteenth of the taxa-
ble year, and is not required to be filed on or before September
fifteenth of the taxable year, the estimated tax shall be paid in full
at the time of the filing of the declaration.
(5) If the declaration is filed after the time prescribed therefor, or
after the expiration of any extension of time therefor, paragraphs two,
three and four of this subdivision shall not apply, and there shall be
paid at the time of such filing all installments of estimated tax paya-
ble at or before such time, and the remaining installments shall be paid
at the times at which, and in the amounts in which, they would have been
payable if the declaration had been filed when due.
(b) Amendments of declaration. If any amendment of a declaration is
filed, the remaining installments, if any, shall be ratably increased or
decreased, as the case may be, to reflect any increase or decrease in
the estimated tax by reason of such amendment, and if any amendment is
made after September fifteenth of the taxable year, any increase in the
estimated tax by reason thereof shall be paid at the time of making such
amendment.
(c) Application to short taxable year. This section shall apply to a
taxable year of less than twelve months in accordance with regulations
of the commissioner of finance.
(d) Fiscal year. This section shall apply to a taxable year other
than a calendar year by the substitution of the months of such fiscal
year for the corresponding months specified in this section.
(e) Installments paid in advance. An unincorporated business may elect
to pay any installment of its estimated tax prior to the date prescribed
for the payment thereof.
(f) Cross reference. For unincorporated businesses with taxable years
beginning prior to July thirteenth, nineteen hundred sixty-six, see
subdivision (j) of section 11-511 of this chapter.
(g) Taxpayers with credit relating to stock transfer tax. The portion
of an overpayment attributable to a credit allowable pursuant to subdi-
vision (c) of section 11-503 of this chapter may not be credited against
any payment due under this section.
§ 11-513 Accounting periods and methods. (a) Accounting periods. A
taxpayer's taxable year under this chapter shall be the same as the
taxpayer's taxable year for federal income tax purposes.
(b) Accounting methods. A taxpayer's method of accounting under this
chapter shall be the same as the taxpayer's method of accounting for
federal income tax purposes. In the absence of any method of accounting
for federal income tax purposes, unincorporated business taxable income
A. 10030 399
shall be computed under such method as in the opinion of the commission-
er of finance clearly reflects income.
(c) Change of accounting period or method. (1) If a taxpayer's taxa-
ble year or method of accounting is changed for federal income tax
purposes, the taxable year or method of accounting for purposes of this
chapter shall be similarly changed.
(2) If a taxpayer's method of accounting is changed, other than from
an accrual to an installment method, any additional tax which results
from adjustments determined to be necessary solely by reason of the
change shall not be greater than if such adjustments were ratably allo-
cated and included for the taxable year of the change and the preceding
taxable years, not in excess of two, beginning after January first,
nineteen hundred sixty-six, during which the taxpayer used the method of
accounting from which the change is made.
(3) If a taxpayer's method of accounting is changed from an accrual
to an installment method, any additional tax for the year of such change
of method and for any subsequent year, which is attributable to the
receipt of installment payments properly accrued in a prior year, shall
be reduced by the portion of tax for any prior taxable year attributable
to the accrual of such installment payments, in accordance with regu-
lations of the commissioner of finance.
§ 11-514 Returns, payment of tax. (a) General. An unincorporated
business income tax return shall be made and filed, and the balance of
any tax shown on the face of such return, not previously paid as
installments of estimated tax, shall be paid, on or before the fifteenth
day of the fourth month following the close of a taxable year, except
that in the case of an unincorporated business classified as a partner-
ship for federal income tax purposes, such return shall be made and
filed and such balance shall be paid on or before the fifteenth day of
the third month following the close of a taxable year for taxable years
beginning on or after January first, two thousand sixteen, by or for
every:
(1) unincorporated business, for taxable years beginning after nine-
teen hundred eighty-six but before nineteen hundred ninety-seven, having
unincorporated business gross income, determined for purposes of this
subdivision without any deduction for the cost of goods sold or services
performed, of more than ten thousand dollars, or having any amount of
unincorporated business taxable income;
(2) partnership, for taxable years beginning after nineteen hundred
ninety-six, having unincorporated business gross income, determined for
purposes of this subdivision without any deduction for the cost of goods
sold or services performed, of more than twenty-five thousand dollars,
or having unincorporated business taxable income of more than fifteen
thousand dollars;
(3) unincorporated business other than a partnership, for taxable
years beginning after nineteen hundred ninety-six, having unincorporated
business gross income, determined for purposes of this subdivision with-
out any deduction for the cost of goods sold or services performed, of
more than seventy-five thousand dollars, or having unincorporated busi-
ness taxable income of more than thirty-five thousand dollars; and
(4) unincorporated business, for taxable years beginning after two
thousand eight, having unincorporated business gross income, determined
for purposes of this subdivision without any deduction for the cost of
goods sold or services performed, of more than ninety-five thousand
dollars.
A. 10030 400
(b) Decedents. The return for any deceased individual shall be made
and filed by his or her executor, administrator, or other person charged
with his or her property. If a final return of a decedent is for a
fractional part of a year, the due date of such return shall be the
fifteenth day of the fourth month following the close of the twelve-
month period which began with the first day of such fractional part of
the year.
(c) Individuals under a disability. The return for an individual who
is unable to make a return by reason of minority or other disability
shall be made and filed by such individual's guardian, committee, fidu-
ciary or other person charged with the care of his or her person or
property, other than a receiver in possession of only a part of his or
her property, or by such individual's duly authorized agent.
(d) Estates and trusts. The return for an estate or trust shall be
made and filed by the fiduciary.
(e) Joint fiduciaries. If two or more fiduciaries are acting jointly,
the return may be made by any one of them.
(f) Returns for taxable years ending prior to December thirty-first,
nineteen hundred sixty-six. With respect to taxable years ending prior
to December thirty-first, nineteen hundred sixty-six, the returns
required to be made and filed pursuant to this section shall be made and
filed on or before the fifteenth day of the fourth month following the
close of such taxable year or September twelfth, nineteen hundred
sixty-six, whichever is later.
(g) Taxpayers with credit relating to stock transfer tax. Subdivision
(a) of this section shall apply to a taxpayer which has a right to a
credit pursuant to subdivision (c) of section 11-503 of this chapter,
except that the tax, or balance thereof, payable to the commissioner of
finance in full pursuant to subdivision (a) of this section, at the time
the report is required to be filed, shall be calculated and paid at such
time as if the credit provided for in subdivision (c) of section 11-503
of this chapter were not allowed.
§ 11-515 Time and place for filing returns and paying tax. A person
required to make and file a return under this chapter shall, without
assessment, notice or demand, pay any tax due thereon to the commission-
er of finance on or before the date fixed for filing such return, deter-
mined without regard to any extension of time for filing the return.
The commissioner of finance shall prescribe by regulation the place for
filing any return, declaration, statement, or other document required
pursuant to this chapter and for payment of any tax.
§ 11-516 Signing of returns and other documents. (a) General. Any
return, declaration, statement or other document required to be made
pursuant to this chapter shall be signed in accordance with regulations
or instructions prescribed by the commissioner of finance. The fact
that an individual's name is signed to a return, declaration, statement,
or other document, shall be prima facie evidence for all purposes that
the return, declaration, statement or other document was actually signed
by such individual.
(b) Partnerships. Any return, statement or other document required of
a partnership shall be signed by one or more partners. The fact that a
partner's name is signed to a return, statement, or other document,
shall be prima facie evidence for all purposes that such partner is
authorized to sign on behalf of the partnership.
(c) Certifications. The making or filing of any return, declaration,
statement or other document or copy thereof required to be made or filed
pursuant to this chapter, including a copy of a federal return, shall
A. 10030 401
constitute a certification by the person making or filing such return,
declaration, statement or other document or copy thereof that the state-
ments contained therein are true and that any copy filed is a true copy.
§ 11-517 Extensions of time. (a) General. The commissioner of
finance may grant a reasonable extension of time for payment of tax or
estimated tax, or any installment, or for filing any return, declara-
tion, statement, or other document required pursuant to this chapter, on
such terms and conditions as it may require. Except for a taxpayer who
is outside the United States, no such extension for filing any return,
declaration, statement or other document, shall exceed six months.
(b) Furnishing of security. If any extension of time is granted for
payment of any amount of tax, the commissioner of finance may require
the taxpayer to furnish a bond or other security in an amount not
exceeding twice the amount for which the extension of time for payment
is granted, on such terms and conditions as the commissioner of finance
may require.
§ 11-518 Requirements concerning returns, notices, records and state-
ments. (a) General. The commissioner of finance may prescribe regu-
lations as to the keeping of records, the content and forms of returns
and statements, and the filing of copies of federal income tax returns
and determinations. The commissioner of finance may require any person,
by regulation or notice served upon such person, to make such returns,
render such statements, or keep such records, as the commissioner of
finance may deem sufficient to show whether or not such person is liable
under this chapter for tax or for collection of tax.
(b) Notice of qualification as receiver, etc. Every receiver, trustee
in bankruptcy, assignee for benefit of creditors, or other like fiduci-
ary shall give notice of his or her qualification as such to the commis-
sioner of finance, as may be required by regulation.
§ 11-519 Report of change in federal or New York state taxable
income. If the amount of a taxpayer's federal or New York state taxable
income reported on his or her federal or New York state income tax for
any taxable year is changed or corrected by the United States internal
revenue service or the New York state tax commission or other competent
authority, or as the result of a renegotiation of a contract or subcon-
tract with the United States or the state of New York, or if a taxpayer,
pursuant to subsection (d) of section sixty-two hundred thirteen of the
internal revenue code, executes a notice of waiver of the restrictions
provided in subsection (a) of said section, or if a taxpayer, pursuant
to subsection (f) of section six hundred eighty-one of the tax law,
executes a notice or waiver of the restrictions provided in subsection
(c) of such section of the tax law, the taxpayer shall report such
change or correction in federal or New York state taxable income or such
execution of such notice of waiver and the changes or corrections of the
taxpayer's federal or New York state taxable income on which it is
based, within ninety days after the final determination of such change,
correction, or renegotiation, or such execution of such notice of waiv-
er, or as otherwise required by the commissioner of finance, and shall
concede the accuracy of such determination or state wherein it is erro-
neous. Any taxpayer filing an amended federal or New York state income
tax return shall also file within ninety days thereafter an amended
return under this chapter, and shall give such information as the
commissioner of finance may require. The commissioner of finance may by
regulation prescribe such exceptions to the requirements of this section
as the commissioner deems appropriate.
A. 10030 402
§ 11-519.1 Report of change of state sales and compensating use tax
liability. Where the state tax commission changes or corrects a taxpay-
er's sales and compensating use tax liability with respect to the
purchase or use of items for which a sales or compensating use tax cred-
it against the tax imposed by this chapter was claimed, the taxpayer
shall report such change or correction to the commissioner of finance
within ninety days of the final determination of such change or
correction, or as required by the commissioner of finance, and shall
concede the accuracy of such determination or state wherein it is erro-
neous. Any taxpayer filing an amended return or report relating to the
purchase or use of such items shall also file within ninety days there-
after a copy of such amended return or report with the commissioner of
finance.
§ 11-520 Change of election. Any election expressly authorized by
this chapter, other than the election authorized by section 11-506 of
this chapter, may be changed on such terms and conditions as the commis-
sioner of finance may prescribe by regulation.
§ 11-521 Notice of deficiency. (a) General. If upon examination of a
taxpayer's return under this chapter the commissioner of finance deter-
mines that there is a deficiency of income tax, the commissioner may
mail a notice of deficiency to the taxpayer. If a taxpayer fails to file
a return required under this chapter, the commissioner of finance is
authorized to estimate the taxpayer's city unincorporated business taxa-
ble income and tax thereon, from any information in the commissioner's
possession, and to mail a notice of deficiency to the taxpayer. A notice
of deficiency shall be mailed by certified or registered mail to the
taxpayer at his or her last known address in or out of the city. If the
taxpayer is deceased or under a legal disability, a notice of deficiency
may be mailed to his or her last known address in or out of the city,
unless the commissioner of finance has received notice of the existence
of a fiduciary relationship with respect to the taxpayer.
(b) Notice of deficiency as assessment. After ninety days from the
mailing of a notice of deficiency or, if the commissioner of finance has
established a conciliation procedure pursuant to section 11-124 of this
title and the taxpayer has requested a conciliation conference in
accordance therewith, after ninety days from the mailing of the concil-
iation decision or the date of the commissioner's confirmation of the
discontinuance of the conciliation proceeding, such notice shall be an
assessment of the amount of tax specified therein, together with the
interest, additions to tax and penalties stated in such notice, except
only for any such tax or other amounts as to which the taxpayer has
within such ninety day period filed with the tax appeals tribunal a
petition under section 11-529 of this chapter. If the notice of defi-
ciency or conciliation decision is addressed to a person outside of the
United States, such period shall be one hundred fifty days instead of
ninety days.
(c) Restrictions on assessment and levy. No assessment of a deficiency
in tax and no levy or proceeding in court for its collection shall be
made, begun or prosecuted, except as otherwise provided in section
11-534 of this chapter, until a notice of deficiency has been mailed to
the taxpayer, nor until the expiration of the time for filing a petition
with the tax appeals tribunal contesting such notice, nor, if a petition
with respect to the taxable year has been both served upon the commis-
sioner of finance and filed with the tax appeals tribunal, until the
decision of the tax appeals tribunal has become final. For exception in
A. 10030 403
the case of judicial review of the decision of the tax appeals tribunal,
see subdivision (c) of section 11-530 of this chapter.
(d) Exceptions for mathematical errors. If a mathematical error
appears on a return, including an overstatement of the amount paid as
estimated tax, the commissioner of finance shall notify the taxpayer
that an amount of tax in excess of that shown upon the return is due,
and that such excess has been assessed.
Such notice shall not be considered as a notice of deficiency for the
purposes of this section, subdivision (f) of section 11-527 of this
chapter, limiting credits or refunds after petition to the tax appeals
tribunal, or subdivision (b) of section 11-529 of this chapter, author-
izing the filing of a petition with the tax appeals tribunal based on a
notice of deficiency, nor shall such assessment or collection be prohib-
ited by the provisions of subdivision (c) of this section.
(e) Exception where change in federal or New York state taxable income
is not reported.
(1) If the taxpayer fails to comply with section 11-519 of this chap-
ter in not reporting a change or correction increasing or decreasing the
taxpayer's federal or New York state taxable income as reported on the
taxpayer's federal or New York state return or in not reporting a change
or correction which is treated in the same manner as if it were a defi-
ciency for federal or New York state income tax purposes or in not
filing an amended return or in not reporting the execution of a notice
of waiver described in such section, instead of the mode and time of
assessment provided for in subdivision (b) of this section, the commis-
sioner of finance may assess a deficiency based upon such changed or
corrected federal or New York state taxable income by mailing to the
taxpayer a notice of additional tax due specifying the amount of the
deficiency, and such deficiency, together with the interest, additions
to tax and penalties stated in such notice, shall be deemed assessed on
the date such notice is mailed unless within thirty days after the mail-
ing of such notice a report of the federal or New York state change or
correction or an amended return, where such return was required by
section 11-519 of this chapter, is filed accompanied by a statement
showing wherein such federal or New York state determination and such
notice of additional tax due are erroneous.
(2) Such notice shall not be considered as a notice of deficiency for
the purposes of this section, subdivision (f) of section 11-527 of this
chapter, limiting credits or refunds after petition to the tax appeals
tribunal, or subdivision (b) of section 11-529 of this chapter, author-
izing the filing of a petition with the tax appeals tribunal based on a
notice of deficiency, nor shall such assessment or collection thereof be
prohibited by the provisions of subdivision (c) of this section.
(3) If the taxpayer is deceased or under a legal disability, a notice
of additional tax due may be mailed to his or her last known address in
or out of the city, unless the commissioner of finance has received
notice of the existence of a fiduciary relationship with respect to the
taxpayer.
(f) Waiver of restrictions. The taxpayer shall at any time, whether or
not a notice of deficiency has been issued, have the right to waive the
restrictions on assessment and collection of the whole or any part of
the deficiency by a signed notice in writing filed with the commissioner
of finance.
(g) Deficiency defined. For purposes of this chapter, a deficiency
means the amount of the tax imposed by this chapter, less (i) the amount
shown as the tax upon the taxpayer's return, whether the return was made
A. 10030 404
or the tax computed by the taxpayer or by the commissioner of finance,
and less, (ii) the amounts previously assessed, or collected without
assessment, as a deficiency and plus (iii) the amount of any rebates.
For the purpose of this definition, the tax imposed by this chapter and
the tax shown on the return shall both be determined without regard to
payments on account of estimated tax; and a rebate means so much of an
abatement, credit, refund or other repayment, whether or not erroneous,
made on the ground that the amounts entering into the definition of a
deficiency showed a balance in favor of the taxpayer.
(h) Exception where change or correction of sales and compensating use
tax liability is not reported. (1) If a taxpayer fails to comply with
section 11-519.1 of this chapter in not reporting a change or correction
of his or her sales and compensating use tax liability or in not filing
a copy of an amended return or report relating to his or her sales and
compensating use tax liability, instead of the mode and time of assess-
ment provided for in subdivision (b) of this section, the commissioner
of finance may assess a deficiency based upon such changed or corrected
sales and compensating use tax liability, as same relates to credits
claimed under this chapter by mailing to the taxpayer a notice of addi-
tional tax due specifying the amount of the deficiency, and such defi-
ciency, together with the interest, additions to tax and penalties stat-
ed in such notice, shall be deemed assessed on the date such notice is
mailed unless within thirty days after the mailing of such notice a
report of the state change or correction or a copy of an amended return
or report, where such copy was required by section 11-519.1 of this
chapter, is filed accompanied by a statement showing where such state
determination and such notice of additional tax due are erroneous.
(2) Such notice shall not be considered as a notice of deficiency for
the purposes of this section, subdivision (f) of section 11-527 of this
chapter, limiting credits or refunds after petition to the tax appeals
tribunal, or subdivision (b) of section 11-529 of this chapter, author-
izing the filing of a petition with the tax appeals tribunal based on a
notice of deficiency, nor shall such assessment or the collection there-
of be prohibited by the provisions of subdivision (c) of this section.
(3) If the taxpayer is deceased or under a legal disability, a notice
of additional tax due may be mailed to his or her last known address in
or out of the city, and such notice shall be sufficient for purposes of
this chapter. If the commissioner of finance has received notice that a
person is acting for the taxpayer in a fiduciary capacity, a copy of
such notice shall also be mailed to the fiduciary named in such notice.
§ 11-522 Assessment. (a) Assessment date. The amount of tax which a
return shows to be due, or the amount of tax which a return would have
shown to be due but for a mathematical error, shall be deemed to be
assessed on the date of filing of the return, including any amended
return showing an increase of tax. In the case of a return properly
filed without computation of tax, the tax computed by the commissioner
of finance shall be deemed to be assessed on the date on which payment
is due. If a notice of deficiency has been mailed, the amount of the
deficiency shall be deemed to be assessed on the date specified in
subdivision (b) of section 11-521 of this chapter if no petition is both
served on the commissioner of finance and filed with the tax appeals
tribunal, or if a petition is filed, then upon the date when a decision
of the tax appeals tribunal establishing the amount of the deficiency
becomes final.
If an amended return or report filed pursuant to section 11-519 of
this chapter concedes the accuracy of a federal or New York state
A. 10030 405
adjustment, change or correction, any deficiency in tax under this chap-
ter resulting therefrom shall be deemed to be assessed on the date of
filing such report or amended return, and such assessment shall be time-
ly notwithstanding section 11-523 of this chapter.
If a report or amended return or report filed pursuant to section
11-519.1 of this chapter concedes the accuracy of a state change or
correction of sales and compensating use tax liability, any deficiency
in tax under this chapter resulting therefrom shall be deemed assessed
on the date of filing such report, and such assessment shall be timely
notwithstanding section 11-523 of this chapter.
If a notice of additional tax due, as prescribed in subdivision (e) of
section 11-521 of this chapter has been mailed, the amount of the defi-
ciency shall be deemed to be assessed on the date specified in such
subdivision unless within thirty days after the mailing of such notice a
report of the federal or New York state change or correction or an
amended return, where such return was required by section 11-519 of this
chapter is filed accompanied by a statement showing wherein such federal
or New York state determination and such notice of additional tax due
are erroneous.
If a notice of additional tax due, as prescribed in subdivision (h) of
section 11-521 of this chapter, has been mailed, the amount of the defi-
ciency shall be deemed to be assessed on the date specified in such
subdivision unless within thirty days after the mailing of such notice a
report of the state change or correction, or a copy of an amended return
or report, where such copy was required by section 11-519.1 of this
chapter, is filed accompanied by a statement showing wherein such state
determination and such notice of additional tax due are erroneous.
Any amount paid as a tax or in respect of a tax, other than amounts
paid as estimated income tax, shall be deemed to be assessed upon the
date of receipt of payment, notwithstanding any other provisions.
(b) Other assessment powers. If the mode or time for the assessment of
any tax under this chapter, including interest, additions to tax and
assessable penalties, is not otherwise provided for, the commissioner of
finance may establish the same by regulations.
(c) Estimated income tax. No unpaid amount of estimated tax under
section one hundred sixteen shall be assessed.
(d) Supplemental assessment. The commissioner of finance may, at any
time within the period prescribed for assessment, make a supplemental
assessment, subject to the provisions of section 11-521 of this chapter
where applicable, whenever it is ascertained that any assessment is
imperfect or incomplete in any material respect.
(e) Cross-reference. For assessment in case of jeopardy, see section
11-534 of this chapter.
§ 11-523 Limitations on assessment. (a) General. Except as otherwise
provided in this section, any tax under this chapter shall be assessed
within three years after the return was filed, whether or not such
return was filed on or after the date prescribed.
(b) Time return deemed filed. For purposes of this section a return
of tax filed before the last day prescribed by law or by regulations
promulgated pursuant to law for the filing thereof, shall be deemed to
be filed on such last day.
(c) Exceptions. (1) Assessment at any time. The tax may be assessed
at any time if:
(A) no return is filed,
(B) a false or fraudulent return is filed with intent to evade tax,
A. 10030 406
(C) the taxpayer fails to comply with section 11-519 of this chapter
in not reporting a change or correction increasing or decreasing the
taxpayer's federal or New York state taxable income as reported on the
taxpayer's federal or New York state income tax return, or the execution
of a notice of waiver and the changes or corrections on which it is
based or in not reporting a change or correction which is treated in the
same manner as if it were a deficiency for federal or New York state
income tax purposes, or in not filing an amended return, or
(D) the taxpayer fails to file a report or amended return or report
required under section 11-519.1 of this chapter, in respect of a change
or correction of sales and compensating use tax liability, relating to
the purchase or use of items for which a sales or compensating use tax
credit against the tax imposed by this chapter was claimed.
(2) Extension by agreement. Where, before the expiration of the time
prescribed in this section for the assessment of tax, both the commis-
sioner of finance and the taxpayer have consented in writing to its
assessment after such time, the tax may be assessed at any time prior to
the expiration of the period agreed upon. The period so agreed upon may
be extended by subsequent agreements in writing made before the expira-
tion of the period previously agreed upon.
(3) Report of changed or corrected federal or New York state income.
If the taxpayer shall, pursuant to section 11-519 of this chapter,
report a change or correction or file an amended return increasing or
decreasing federal or New York state taxable income or report the
execution of a notice of waiver and the changes and corrections on which
it is based, or a change or correction which is treated in the same
manner as if it were a deficiency for federal or New York state income
tax purposes, the assessment, if not deemed to have been made upon the
filing of the report or amended return, may be made at any time within
two years after such report or amended return was filed. The amount of
such assessment of tax shall not exceed the amount of the increase in
city tax attributable to such federal or New York state change or
correction. The provisions of this paragraph shall not affect the time
within which or the amount for which an assessment may otherwise be
made.
(4) Deficiency attributable to net operating loss carryback. If a
deficiency is attributable to the application to the taxpayer of a net
operating loss carryback, it may be assessed at any time that a defi-
ciency for the taxable year of the loss may be assessed.
(5) Recovery of erroneous refund. An erroneous refund shall be
considered an underpayment of tax on the date made, and an assessment of
a deficiency arising out of an erroneous refund may be made at any time
within two years from the making of the refund, except that the assess-
ment may be made within five years from the making of the refund if it
appears that any part of the refund was induced by fraud or misrepresen-
tation of a material fact.
(6) Request for prompt assessment. If a return is required for a
decedent or for his or her estate during the period of administration,
the tax shall be assessed within eighteen months after written request
therefor, made after the return is filed, by the executor, administrator
or other person representing the estate of such decedent, but not more
than three years after the return was filed, except as otherwise
provided in this subdivision and subdivision (d) of this section.
(7) Report on use of certain property. Under the circumstances
described in paragraph two of subdivision (b) of section 11-509 of this
chapter, the tax may be assessed within three years after the filing of
A. 10030 407
a return reporting that property has been used for purposes other than
research and development to a greater extent than originally reported.
(8) Report concerning waste treatment facility. Under the circum-
stances described in paragraph (i) of section 11-507 of this chapter,
the tax may be assessed within three years after the filing of the
return containing the information required by such paragraph.
(9) Report of changed or corrected sales and compensating use tax
liability. If the taxpayer files a report or amended return or report
required under section 11-519.1 of this chapter, in respect of a change
or correction of sales and compensating use tax liability, the assess-
ment, if not deemed to have been made upon the filing of the report, may
be made at any time within two years after such report or amended return
or report was filed. The amount of such assessment of tax shall not
exceed the amount of the increase in city tax attributable to such state
change or correction. The provisions of this paragraph shall not affect
the time within which or the amount for which an assessment may other-
wise be made.
(d) Omission of income on return. The tax may be assessed at any time
within six years after the return was filed if (1) a taxpayer omits from
his or her city unincorporated business gross income an amount properly
includible therein which is in excess of twenty-five per centum of the
amount of city unincorporated business gross income stated in the
return, or (2) an estate or trust omits income from its return in an
amount in excess of twenty-five percent of its income determined as if
it were an individual.
For purposes of this subdivision there shall not be taken into account
any amount which is omitted in the return if such amount is disclosed in
the return, or in a statement attached to the return, in a manner
adequate to apprise the commissioner of finance of the nature and amount
of such item.
(e) Suspension of running of period of limitation. The running of the
period of limitations on assessment or collection of tax or other
amount, or of a transferee's liability, shall, after the mailing of a
notice of deficiency, be suspended for the period during which the
commissioner of finance is prohibited under subdivision (c) of section
11-521 of this chapter from making the assessment or from collecting by
levy.
§ 11-524 Interest on underpayment. (a) General. If any amount of tax
is not paid on or before the last date prescribed in this chapter for
payment, interest on such amount at the underpayment rate set by the
commissioner of finance pursuant to section 11-537 of this chapter, or,
if no rate is set, at the rate of seven and one-half percent per annum
shall be paid for the period from such last date to the date paid,
whether or not any extension of time for payment was granted. Interest
under this subdivision shall not be paid if the amount thereof is less
than one dollar.
(b) Exception as to estimated tax. This section shall not apply to
any failure to pay estimated tax under section 11-512 of this chapter.
(c) Exception for mathematical error. No interest shall be imposed on
any underpayment of tax due solely to mathematical error if the taxpayer
files a return within the time prescribed in this chapter, including any
extension of time, and pays the amount of underpayment within three
months after the due date of such return, as it may be extended.
(d) Suspension of interest on deficiencies. If a waiver of
restrictions on assessment of a deficiency has been filed by the taxpay-
er, and if notice and demand by the commissioner of finance for payment
A. 10030 408
of such deficiency is not made within thirty days after the filing of
such waiver, interest shall not be imposed on such deficiency for the
period beginning immediately after such thirtieth day and ending with
the date of notice and demand.
(e) Tax reduced by carryback. If the amount of tax for any taxable
year is reduced by reason of a carryback of a net operating loss, such
reduction in tax shall not affect the computation of interest under this
section for the period ending with the filing date for the taxable year
in which the net operating loss arises. Such filing date shall be deter-
mined without regard to extensions of time to file.
(f) Interest treated as tax. Interest under this section shall be
paid upon notice and demand and shall be assessed, collected and paid in
the same manner as tax. Any reference in this chapter to the tax
imposed by this chapter shall be deemed also to refer to interest
imposed by this section on such tax.
(g) Interest on penalties or additions to tax. Interest shall be
imposed under subdivision (a) of this section in respect of any assessa-
ble penalty or addition to tax only if such assessable penalty or addi-
tion to tax is not paid within ten days from the date of the notice and
demand therefor under subdivision (b) of section 11-532 of this chapter,
and in such case interest shall be imposed only for the period from such
date of the notice and demand to the date of payment.
(h) Payment within ten days after notice and demand. If notice and
demand is made for payment of any amount under subdivision (b) of
section 11-532 of this chapter, and if such amount is paid within ten
days after the date of such notice and demand, interest under this
section on the amount so paid shall not be imposed for the period after
the date of such notice and demand.
(i) Limitation on assessment and collection. Interest prescribed
under this section may be assessed and collected at any time during the
period within which the tax or other amount to which such interest
relates may be assessed and collected, respectively.
(j) Interest on erroneous refund. Any portion of tax or other amount
which has been erroneously refunded, and which is recoverable by the
commissioner of finance, shall bear interest at the underpayment rate
set by the commissioner of finance pursuant to section 11-537 of this
chapter, or, if no rate is set, at the rate of seven and one-half
percent per annum from the date of the payment of the refund, but only
if it appears that any part of the refund was induced by fraud or a
misrepresentation of a material fact.
(k) Satisfaction by credits. If any portion of a tax is satisfied by
credit of an overpayment, then no interest shall be imposed under this
section on the portion of the tax so satisfied for any period during
which, if the credit had not been made, interest would have been allow-
able with respect to such overpayment.
§ 11-525 Additions to tax and civil penalties. (a) (1) Failure to
file tax return. (A) In case of failure to file a tax return under this
chapter on or before the prescribed date, determined with regard to any
extension of time for filing, unless it is shown that such failure is
due to reasonable cause and not due to willful neglect, there shall be
added to the amount required to be shown as tax on such return five
percent of the amount of such tax if the failure is for not more than
one month, with an additional five percent for each additional month or
fraction thereof during which such failure continues, not exceeding
twenty-five percent in the aggregate.
A. 10030 409
(B) In the case of a failure to file a tax return within sixty days of
the date prescribed for filing of such return, determined with regard to
any extension of time for filing, unless it is shown that such failure
is due to reasonable cause and not due to willful neglect, the addition
to tax under subparagraph (A) of this paragraph shall not be less than
the lesser of one hundred dollars or one hundred percent of the amount
required to be shown as tax on such return.
(C) For purposes of this paragraph, the amount of tax required to be
shown on the return shall be reduced by the amount of any part of the
tax which is paid on or before the date prescribed for payment of the
tax and by the amount of any credit against the tax which may be claimed
upon the return.
(2) Failure to pay tax shown on return. In case of failure to pay the
amounts shown as tax on any return required to be filed under this chap-
ter on or before the prescribed date, determined with regard to any
extension of time for payment, unless it is shown that such failure is
due to reasonable cause and not due to willful neglect, there shall be
added to the amount shown as tax on such return one-half of one percent
of the amount of such tax if the failure is not for more than one month,
with an additional one-half of one percent for each additional month or
fraction thereof during which such failure continues, not exceeding
twenty-five percent in the aggregate. For the purpose of computing the
addition for any month, the amount of tax shown on the return shall be
reduced by the amount of any part of the tax which is paid on or before
the beginning of such month and by the amount of any credit against the
tax which may be claimed upon the return. If the amount of tax required
to be shown on a return is less than the amount shown as tax on such
return, this paragraph shall be applied by substituting such lower
amount.
(3) Failure to pay tax required to be shown on return. In case of
failure to pay any amount in respect of any tax required to be shown on
a return required to be filed under this chapter which is not so shown,
including an assessment made pursuant to subdivision (a) of section
11-522 of this chapter, within ten days of the date of a notice and
demand therefor, unless it is shown that such failure is due to reason-
able cause and not due to willful neglect, there shall be added to the
amount of tax stated in such notice and demand one-half of one percent
of such tax if the failure is not for more than one month, with an addi-
tional one-half of one percent for each additional month or fraction
thereof during which such failure continues, not exceeding twenty-five
percent in the aggregate. For the purpose of computing the addition for
any month, the amount of tax stated in the notice and demand shall be
reduced by the amount of any part of the tax which is paid before the
beginning of such month.
(4) Limitations on additions. (A) With respect to any return the
amount of the addition under paragraph one of this subdivision shall be
reduced by the amount of the addition under paragraph two of this subdi-
vision for any month to which an addition applies under both paragraphs
one and two of this subdivision. In any case described in subparagraph
(B) of paragraph one of this subdivision, the amount of the addition
under such paragraph one shall not be reduced below the amount provided
in such subparagraph.
(B) With respect to any return, the maximum amount of the addition
permitted under paragraph three of this subdivision shall be reduced by
the amount of the addition under paragraph one of this subdivision,
determined without regard to subparagraph (B) of such paragraph one,
A. 10030 410
which is attributable to the tax for which the notice and demand is made
and which is not paid within ten days of such notice and demand.
(b) Deficiency due to negligence. (1) If any part of a deficiency is
due to negligence or intentional disregard of this chapter or rules or
regulations hereunder, but without intent to defraud, there shall be
added to the tax an amount equal to five percent of the deficiency.
(2) There shall be added to the tax, in addition to the amount deter-
mined under paragraph one of this subdivision, an amount equal to fifty
percent of the interest payable under subdivision (a) of section 11-524
with respect to the portion of the deficiency described in such para-
graph one which is attributable to the negligence or intentional disre-
gard referred to in such paragraph one, for the period beginning on the
last date prescribed by law for payment of such deficiency, determined
without regard to any extension, and ending on the date of the assess-
ment of the tax, or, if earlier, the date of the payment of the tax.
(3) If any payment is shown on a return made by a payor with respect
to dividends, patronage dividends and interest under subsection (a) of
section six thousand forty-two, subsection (a) of section six thousand
forty-four or subsection (a) of section six thousand forty-nine of the
internal revenue code of nineteen hundred fifty-four, respectively, and
the payee fails to include any portion of such payment in unincorporated
business gross income, as that term is defined in section 11-506, any
portion of a deficiency attributable to such failure shall be treated,
for purposes of this subdivision, as due to negligence in the absence of
clear and convincing evidence to the contrary. If any addition to tax is
imposed under this subdivision by reason of this paragraph, the amount
of the addition to tax imposed by paragraph one of this subdivision
shall be five percent of the portion of the deficiency which is attrib-
utable to the failure described in this paragraph.
(c) Failure to file declaration or underpayment of estimated tax. If
any taxpayer fails to file a declaration of estimated tax or fails to
pay all or any part of an installment of estimated tax, the taxpayer
shall be deemed to have made an underpayment of estimated tax. There
shall be added to the tax for the taxable year an amount at the under-
payment rate set by the commissioner of finance pursuant to section
11-537 of this chapter, or, if no rate is set, at the rate of seven and
one-half percent per annum upon the amount of the underpayment for the
period of the underpayment but not beyond the fifteenth day of the
fourth month following the close of the taxable year. The amount of the
underpayment shall be the excess of the amount of the installment which
would be required to be paid if the estimated tax were equal to ninety
percent of the tax shown on the return for the taxable year, or if no
return was filed, ninety percent of the tax for such year, over the
amount, if any, of the installment paid on or before the last day
prescribed for such payment. No underpayment shall be deemed to exist
with respect to a declaration or installment otherwise due on or after
the taxpayer's death. In any case in which there would be no underpay-
ment if this subdivision were applied by substituting "eighty percent"
for "ninety percent" where it appears in this subdivision, the addition
to tax under this subdivision shall be equal to seventy-five percent of
the amount otherwise determined under this subdivision.
(d) Exception to addition for underpayment of estimated tax. The addi-
tion to tax under subdivision (c) of this section with respect to any
underpayment of any installment shall not be imposed if the total amount
of all payments of estimated tax made on or before the last date
A. 10030 411
prescribed for the payment of such installment equals or exceeds which-
ever of the following is the lesser:
(1) The amount which would have been required to be paid on or before
such date if the estimated tax were whichever of the following is the
least:
(A) The tax shown on the return of the taxpayer for the preceding
taxable year, if a return showing a liability for tax was filed by the
taxpayer for the preceding taxable year and such preceding year was a
taxable year of twelve months, or
(B) An amount equal to the tax computed, at the rates applicable to
the taxable year, but otherwise on the basis of the facts shown on the
taxpayer's return for, and the law applicable to, the preceding taxable
year, or
(C) An amount equal to ninety percent of the tax for the taxable year
computed by placing on an annualized basis the unincorporated business
taxable income for the months in the taxable year ending before the
month in which the installment is required to be paid. For purposes of
this subparagraph, the unincorporated business taxable income shall be
placed on an annualized basis by:
(i) multiplying by twelve, or, in the case of a taxable year of less
than twelve months, the number of months in the taxable year, the unin-
corporated business taxable income for the months in the taxable year
ending before the month in which the installment is required to be paid,
and
(ii) dividing the resulting amount by the number of months in the
taxable year ending before the month in which such installment date
falls, or
(D)(i) If the base period percentage for any six consecutive months of
the taxable year equals or exceeds seventy percent, an amount equal to
ninety percent of the tax determined in the following manner:
(I) take the unincorporated business taxable income for all months
during the taxable year preceding the filing month,
(II) divide such amount by the base period percentage for all months
during the taxable year preceding the filing month,
(III) determine the tax on the amounts determined under subclause (II)
of this clause, and
(IV) multiply the tax determined under subclause (III) of this clause
by the base period percentage for the filing month and all months during
the taxable year preceding the filing month.
(ii) For purposes of clause (i) of this subparagraph:
(I) the base period percentage for any period of months shall be the
average percent which the unincorporated business taxable income for the
corresponding months in each of the three preceding years bears to the
unincorporated business taxable income for the three preceding taxable
years. The commissioner of finance may by regulations provide for the
determination of the base period percentage in the case of new unincor-
porated businesses and other similar circumstances, and
(II) the term "filing month" means the month in which the installment
is required to be paid;
(2) An amount equal to ninety percent of the tax computed, at the
rates applicable to the taxable year, on the basis of the actual unin-
corporated business taxable income for the months in the taxable year
ending before the month in which the installment is required to be paid.
(e)(1) Except as provided in paragraph two of this subdivision,
subparagraphs (A) and (B) of paragraph one of subdivision (d) of this
section shall not apply in the case of any taxpayer which had unincorpo-
A. 10030 412
rated business taxable income, or the portion thereof allocated within
the city, of one million dollars or more for any taxable year during the
three taxable years immediately preceding the taxable year involved.
(2) The amount treated as the estimated tax under subparagraphs (A)
and (B) of paragraph one of subdivision (d) of this section shall in no
event be less than seventy-five percent of the tax shown on the return
for the taxable year beginning in nineteen hundred eighty-three or, if
no return was filed, seventy-five percent of the tax for such year.
(f) Deficiency due to fraud. (1) If any part of a deficiency is due to
fraud, there shall be added to the tax an amount equal to two times of
the deficiency.
(2) The addition to tax under this subdivision shall be in lieu of any
other addition to tax imposed by subdivision (a) or (b) of this section.
(g) Additional penalty. Any taxpayer who with fraudulent intent shall
fail to pay any tax, or to make, render, sign or certify any return or
declaration of estimated tax, or to supply any information within the
time required by or under this chapter shall be liable to a penalty of
not more than one thousand dollars, in addition to any other amounts
required under this chapter, to be imposed, assessed and collected by
the commissioner of finance. The commissioner of finance shall have the
power, in his or her discretion, to waive, reduce or compromise any
penalty under this subdivision.
(h) Additions treated as tax. The additions to tax and penalties
provided by this section shall be paid upon notice and demand and shall
be assessed, collected and paid in the same manner as taxes, and any
reference in this chapter to tax or tax imposed by this chapter, shall
be deemed also to refer to the additions to tax and penalties provided
by this section. For purposes of section 11-521, this subdivision shall
not apply to:
(1) any addition to tax under subdivision (a) of this section except
as to that portion attributable to a deficiency;
(2) any addition to tax under subdivision (c) of this section; and
(3) any additional penalties under subdivisions (g) and (k) of this
section.
(i) Determination of deficiency. For purposes of subdivisions (b) and
(c) of this section, the amounts shown as the tax by the taxpayer upon
his or her return shall be taken into account in determining the amount
of the deficiency only if such return was filed on or before the last
day prescribed for the filing of such return, determined with regard to
any extension of time for such filing.
(j) Substantial understatement of liability. If there is a substantial
understatement of tax for any taxable year, there shall be added to the
tax an amount equal to ten percent of the amount of any underpayment
attributable to such understatement. For purposes of this subdivision,
there is a substantial understatement of tax for any taxable year if the
amount of the understatement for the taxable year exceeds the greater of
ten percent of the tax required to be shown on the return for the taxa-
ble year, or five thousand dollars. For purposes of the this subdivi-
sion, the term "understatement" means the excess of the amount of the
tax required to be shown on the return for the taxable year, over the
amount of the tax imposed which is shown on the return, reduced by any
rebate, within the meaning of subdivision (g) of section 11-521 of this
chapter. The amount of such understatement shall be reduced by that
portion of the understatement which is attributable to the tax treatment
of any item by the taxpayer if there is or was substantial authority for
such treatment, or any item with respect to which the relevant facts
A. 10030 413
affecting the item's tax treatment are adequately disclosed in the
return or in a statement attached to the return. The commissioner of
finance may waive all or any part of the addition to tax provided by
this subdivision on a showing by the taxpayer that there was reasonable
cause for the understatement, or part thereof, and that the taxpayer
acted in good faith.
(k) Aiding or assisting in the giving of fraudulent returns, reports,
statements or other documents. (1) Any person who, with the intent that
tax be evaded, shall, for a fee or other compensation or as an incident
to the performance of other services for which such person receives
compensation, aid or assist in, or procure, counsel, or advise the prep-
aration or presentation under, or in connection with any matter arising
under this chapter of any return, report, declaration, statement or
other document which is fraudulent or false as to any material matter,
or supply any false or fraudulent information, whether or not such
falsity or fraud is with the knowledge or consent of the person author-
ized or required to present such return, report, declaration, statement
or other document shall pay a penalty not exceeding ten thousand
dollars.
(2) For purposes of paragraph one of this subdivision, the term
"procures" includes ordering, or otherwise causing, a subordinate to do
an act, and knowing of, and not attempting to prevent, participation by
a subordinate in an act. The term "subordinate" means any other person,
whether or not a member, employee, or agent of the taxpayer involved,
over whose activities the person has direction, supervision, or control.
(3) For purposes of paragraph one of this subdivision, a person
furnishing typing, reproducing, or other mechanical assistance with
respect to a document shall not be treated as having aided or assisted
in the preparation of such document by reason of such assistance.
(4) The penalty imposed by this subdivision shall be in addition to
any other penalty provided by law.
(l) False or fraudulent document penalty. Any taxpayer that submits a
false or fraudulent document to the department shall be subject to a
penalty of one hundred dollars per document submitted, or five hundred
dollars per tax return submitted. Such penalty shall be in addition to
any other penalty or addition provided by law.
§ 11-526 Overpayment. (a) General. The commissioner of finance,
within the applicable period of limitations, may credit an overpayment
of tax and interest on such overpayment against any liability in respect
of any tax imposed by this title, on the person who made overpayment,
and the balance shall be refunded. Such credit of an overpayment shall
be applied before such overpayment, or any portion thereof, is paid to
the state commissioner of taxation and finance pursuant to section one
hundred seventy-one-m of the tax law.
(b) Credits against estimated tax. The commissioner of finance may
prescribe regulations providing for the crediting against the estimated
tax for any taxable year of the amount determined to be an overpayment
of the tax for a preceding taxable year. If any overpayment of tax is
so claimed as a credit against estimated tax for the succeeding taxable
year, such amount shall be considered as a payment of the tax for the
succeeding taxable year, whether or not claimed as a credit in the
declaration of estimated tax for such succeeding taxable year, and no
claim for credit or refund of such overpayment shall be allowed for the
taxable year for which the overpayment arises.
A. 10030 414
(c) Rule where no tax liability. If there is no tax liability for a
period in respect of which an amount is paid as tax, such amount shall
be considered an overpayment.
(d) Assessment and collection after limitation period. If any amount
of income tax is assessed or collected after the expiration of the peri-
od of limitations properly applicable thereto, such amount shall be
considered an overpayment.
(e) Notwithstanding any provision of law in article fifty-two of the
civil practice law and rules to the contrary, the procedures for the
enforcement of money judgments shall not apply to the department of
finance, or to any officer or employee of the department of finance, as
a garnishee, with respect to any amount of money to be refunded or cred-
ited to a taxpayer under this chapter.
§ 11-527 Limitation on credit or refund. (a) General. Claim for credit
or refund of an overpayment of tax shall be filed by the taxpayer within
three years from the time the return was filed or two years from the
time the tax was paid, whichever of such periods expires the later, or
if no return was filed, within two years from the time the tax was paid.
If the claim is filed within the three year period, the amount of the
credit or refund shall not exceed the portion of the tax paid within the
three years immediately preceding the filing of the claim plus the peri-
od of any extension of time for filing the return. If the claim is not
filed within the three year period, but is filed within the two year
period, the amount of the credit or refund shall not exceed the portion
of the tax paid during the two years immediately preceding the filing of
the claim. Except as otherwise provided in this section, if no claim is
filed, the amount of a credit or refund shall not exceed the amount
which would be allowable if a claim had been filed on the date the cred-
it or refund is allowed.
(b) Extension of time by agreement. If an agreement under the
provisions of paragraph two of subdivision (c) of section 11-523 of this
chapter, extending the period for assessment of income tax, is made
within the period prescribed in subdivision (a) of this section for the
filing of a claim for credit or refund the period for filing a claim for
credit or refund, or for making credit or refund if no claims filed,
shall not expire prior to six months after the expiration of the period
within which an assessment may be made pursuant to the agreement or any
extension thereof. The amount of such credit or refund shall not exceed
the portion of the tax paid after the execution of the agreement and
before the filing of the claim or the making of the credit or refund, as
the case may be, plus the portion of the tax paid within the period
which would be applicable under subdivision (a) of this section if a
claim had been filed on the date the agreement was executed.
(c) Notice of change or correction of federal or New York state taxa-
ble income. If a taxpayer is required by section 11-519 of this chapter
to report a change or correction in federal or New York state taxable
income reported on the taxpayer's federal or New York state income tax
return, or to report a change or correction which is treated in the same
manner as if it were an overpayment for federal or New York state income
tax purposes, or to file an amended return with the commissioner of
finance, claim for credit or refund of any resulting overpayment of tax
shall be filed by the taxpayer within two years from the time the notice
of such change or correction or such amended return was required to be
filed with the commissioner of finance. If the report or amended return
required by section 11-519 of this chapter is not filed within the nine-
ty day period therein specified, no interest shall be payable on any
A. 10030 415
claim for credit or refund of the overpayment attributable to the feder-
al or New York state change or correction. The amount of such credit or
refund shall not exceed the amount of the reduction in tax attributable
to such federal or New York state change, correction or items amended on
the taxpayer's amended federal or New York state income tax return. This
subdivision shall not affect the time within which or the amount for
which a claim for credit or refund may be filed apart from this subdivi-
sion.
(d) Overpayment attributable to net operating loss carryback. A claim
for credit or refund of so much of an overpayment as is attributable to
the application to the taxpayer of a net operating loss carryback shall
be filed within three years from the time the return was due for the
taxable year of the loss, or within the period prescribed in subdivision
(b) of this section in respect of such taxable year, or within the peri-
od prescribed in subdivision (c) of this section, where applicable in
respect of the taxable year to which the net operating loss is carried
back, whichever expires the latest.
(e) Failure to file claim within prescribed period. No credit or
refund shall be allowed or made, except as provided in subdivision (f)
of this section or subdivision (d) of section 11-530 of this chapter
after the expiration of the applicable period of limitation specified in
this chapter unless a claim for credit or refund is filed by the taxpay-
er within such period. Any later credit shall be void and any later
refund erroneous. No period of limitations specified in any other law
shall apply to the recovery by a taxpayer of moneys paid in respect of
taxes under this chapter.
(f) Effect of petition to tax appeals tribunal. If a notice of defi-
ciency for a taxable year has been mailed to the taxpayer under section
11-521 of this chapter and if the taxpayer files a timely petition with
the tax appeals tribunal under section 11-529 of this chapter, the tax
appeals tribunal may determine that the taxpayer has made an overpayment
for such year, whether or not it also determines a deficiency for such
year. No separate claim for credit or refund for such year shall be
filed, and no credit or refund for such year shall be allowed or made,
except:
(1) as to overpayments determined by a decision of the tax appeals
tribunal which has become final;
(2) as to any amount collected in excess of an amount computed in
accordance with the decision of the tax appeals tribunal which has
become final;
(3) as to any amount collected after the period of limitation upon the
making of levy for collection has expired; and
(4) as to any amount claimed as a result of a change or correction
described in subdivision (c) of this section.
(g) Limit on amount of credit or refund. The amount of overpayment
determined under subdivision (f) of this section shall, when the deci-
sion of the tax appeals tribunal has become final, be credited or
refunded in accordance with subdivision (a) of section 11-526 of this
chapter and shall not exceed the amount of tax which the tax appeals
tribunal determines as part of its decision was paid:
(1) after the mailing of the notice of deficiency, or
(2) within the period which would be applicable under subdivision (a),
(b) or (c) of this section, if on the date of the mailing of the notice
of deficiency a claim has been filed, whether or not filed, stating the
grounds upon which the tax appeals tribunal finds that there is an over-
payment.
A. 10030 416
(h) Early return. For purposes of this section, any return filed
before the last day prescribed for the filing thereof shall be consid-
ered as filed on such last day, determined without regard to any exten-
sion of time granted the taxpayer.
(i) Prepaid tax. For purposes of this section, any tax paid by the
taxpayer before the last day prescribed for its payment and any amount
paid by the taxpayer as estimated tax for a taxable year shall be deemed
to have been paid by the taxpayer on the fifteenth day of the fourth
month following the close of his or her taxable year with respect to
which such amount constitutes a credit or payment, except that for taxa-
ble years beginning on or after January first, two thousand sixteen, in
the case of a taxpayer classified as a partnership for federal income
tax purposes, such amount shall be deemed to have been paid on the
fifteenth day of the third month following the close of his or her taxa-
ble year with respect to which such amount constitutes a credit or
payment.
(j) Cross reference. For provision barring refund of overpayment cred-
ited against tax of a succeeding year, see subdivision (d) of section
11-526 of this chapter.
(k) Notice of change or correction of sales and compensating use tax
liability. If a taxpayer is required by section 11-519.1 of this chapter
to file a report or amended return or report in respect of a change or
correction of his or her sales and compensating use tax liability, claim
for credit or refund of any resulting overpayment of tax shall be filed
by the taxpayer within two years from the time such report or amended
return or report was required to be filed with the commissioner of
finance. The amount of such credit or refund shall be computed without
change of the allocation of income upon which the taxpayer's return, or
any additional assessment, was based, and shall not exceed the amount of
the reduction in tax attributable to such change or correction of sales
and compensating use tax liability.
This subdivision shall not affect the time within which or the amount
for which a claim for credit or refund may be filed apart from this
subdivision.
§ 11-528 Interest on overpayment. (a) General. Notwithstanding the
provisions of section three-a of the general municipal law, interest
shall be allowed and paid as follows at the overpayment rate set by the
commissioner of finance pursuant to section 11-537 of this chapter, or,
if no rate is set, at the rate of six percent per annum upon any over-
payment in respect of the tax imposed by this chapter:
(1) from the date of the overpayment to the due date of an amount
against which a credit is taken; or
(2) from the date of the overpayment to a date, to be determined by
the commissioner of finance, preceding the date of a refund check by not
more than thirty days, whether or not such refund check is accepted by
the taxpayer after tender of such check to the taxpayer. The acceptance
of such check shall be without prejudice to any right of the taxpayer to
claim any additional overpayment and interest thereon.
(3) Late and amended returns and claims for credit or refund.
Notwithstanding paragraph one or two of this subdivision, in the case of
an overpayment claimed on a return of tax which is filed after the last
date prescribed for filing such return, determined with regard to exten-
sions, or claimed on an amended return of tax or claimed on a claim, for
credit or refund, no interest shall be allowed or paid for any day
before the date on which such return or claim is filed.
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(4) Interest on certain refunds. To the extent provided for in regu-
lations promulgated by the commissioner of finance, if an item of
income, gain, loss, deduction or credit is changed from the taxable year
or period in which it is reported to the taxable year or period in which
it belongs and the change results in an underpayment in a taxable year
or period and an overpayment in some other taxable year or period, the
provisions of paragraph three of this subdivision with respect to an
overpayment shall not be applicable to the extent that the limitation in
such paragraph on the right to interest would result in a taxpayer not
being allowed interest for a length of time with respect to an overpay-
ment while being required to pay interest on an equivalent amount of the
related underpayment. However, this paragraph shall not be construed as
limiting or mitigating the effect of any statute of limitations or any
other provisions of law relating to the authority of such commissioner
to issue a notice of deficiency or to allow a credit or refund of an
overpayment.
(5) Amounts of less than one dollar. No interest shall be allowed or
paid if the amount thereof is less than one dollar.
(b) Advance payment of tax and payment of estimated tax. The
provisions of subdivisions (h) and (i) of section 11-527 of this chapter
applicable in determining the date of payment of tax for purposes of
determining the period of limitations on credit or refund, shall be
applicable in determining the date of payment for purposes of this
section.
(c) Refund within three months of claim for overpayment. If any over-
payment of tax imposed by this chapter is credited or refunded within
three months after the last date prescribed, or permitted by extension
of time, for filing the return of such tax on which such overpayment was
claimed or within three months after such return was filed, whichever is
later, or within three months after an amended return was filed claiming
such overpayment or within three months after a claim for credit or
refund was filed on which such overpayment was claimed, no interest
shall be allowed under this section on any such overpayment. For
purposes of this subdivision, any amended return or claim for credit or
refund filed before the last day prescribed, or permitted by extension
of time, for the filing of the return of tax for such year shall be
considered as filed on such last day.
(d) Refund of tax caused by carryback. For purposes of this section,
if any overpayment of tax imposed by this chapter results from a carry-
back of a net operating loss, such overpayment shall be deemed not to
have been made prior to the filing date for the taxable year in which
such net operating loss arises. Such filing date shall be determined
without regard to extensions of time to file. For purposes of subdivi-
sion (c) of this section any overpayment described herein shall be
treated as an overpayment for the loss year and such subdivision shall
be applied with respect to such overpayment by treating the return for
the loss year as not filed before claim for such overpayment is filed.
The term "loss year" means the taxable year in which such loss arises.
(e) No interest until return in processible form. (1) For purposes of
subdivisions (a) and (c) of this section, a return shall not be treated
as filed until it is filed in processible form.
(2) For purposes of paragraph one of this subdivision, a return is in
a processible form if:
(A) such return is filed on a permitted form, and
(B) such return contains:
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(i) the taxpayer's name, address, and identifying number and the
required signatures, and
(ii) sufficient required information, whether on the return or on
required attachments, to permit the mathematical verification of tax
liability shown on the return.
(f) Cross-reference. For provision with respect to interest after
failure to file notice of federal or New York state change under section
11-519 of this chapter, see subdivision (c) of section 11-527 of this
chapter.
§ 11-529 Petition to tax appeals tribunal. (a) General. The form of a
petition to the tax appeals tribunal, and further proceedings before the
tax appeals tribunal in any case initiated by the filing of a petition,
shall be governed by such rules as the tax appeals tribunal shall
prescribe. No petition shall be denied in whole or in part without
opportunity for a hearing on reasonable prior notice. Such hearing and
any appeal to the tribunal sitting en banc from the decision rendered in
such hearing shall be conducted in the manner and subject to the
requirements prescribed by the tax appeals tribunal pursuant to sections
one hundred sixty-eight through one hundred seventy-two of the charter
of the preceding municipality as it existed January first, nineteen
hundred ninety-four. A decision of the tax appeals tribunal shall be
rendered, and notice thereof shall be given, in the manner provided by
section one hundred seventy-one of the charter of the preceding munici-
pality.
(b) Petition for redetermination of a deficiency. Within ninety days,
or one hundred fifty days if the notice is addressed to a person outside
of the United States, after the mailing of the notice of deficiency
authorized by section 11-521 of this chapter, or if the commissioner of
finance has established a conciliation procedure pursuant to section
11-124 of this title and the taxpayer has requested a conciliation
conference in accordance therewith, within ninety days from the mailing
of the conciliation decision or the date of the commissioner's confirma-
tion of the discontinuance of the conciliation proceeding, the taxpayer
may file a petition with the tax appeals tribunal for a redetermination
of the deficiency. Such petition may also assert a claim for refund for
the same taxable year or years, subject to the limitations of subdivi-
sion (g) of section 11-527 of this chapter.
(c) Petition for refund. A taxpayer may file a petition with the tax
appeals tribunal for the amounts asserted in a claim for refund if:
(1) the taxpayer has filed a timely claim for refund with the commis-
sioner of finance,
(2) the taxpayer has not previously filed with the tax appeals tribu-
nal a timely petition under subdivision (b) of this section for the same
taxable year unless the petition under this subdivision relates to a
separate claim for credit or refund properly filed under subdivision (f)
of section 11-527 of this chapter, and
(3) either: (A) six months have expired since the claim was filed, or
(B) the commissioner of finance has mailed to the taxpayer, by regis-
tered or certified mail, a notice of disallowance of such claim in whole
or in part. No petition under this subdivision shall be filed more than
two years after the date of mailing of a notice of disallowance, unless
prior to the expiration of such two year period it has been extended by
written agreement between the taxpayer and the commissioner of finance.
If a taxpayer files a written waiver of the requirement that he or she
be mailed a notice of disallowance, the two year period prescribed by
A. 10030 419
this subdivision for filing a petition for refund shall begin on the
date such waiver is filed.
(4) If the commissioner of finance has established a conciliation
procedure pursuant to section 11-124 of this title, a taxpayer who is
eligible to file a petition for refund with the tax appeals tribunal
pursuant to this subdivision may request a conciliation conference prior
to filing such petition, provided the request is made within the time
prescribed for filing the petition. Notwithstanding anything in this
subdivision to the contrary, if the taxpayer has requested a concil-
iation conference in accordance with the procedure established pursuant
to section 11-124 of this title, a petition for refund may be filed no
later than ninety days from the mailing of the conciliation decision or
the date of the commissioner's confirmation of the discontinuance of the
conciliation proceeding.
(d) Assertion of deficiency after filing petition. (1) Petition for
redetermination of deficiency. If a taxpayer files with the tax appeals
tribunal a petition for redetermination of a deficiency, the tax appeals
tribunal shall have power to determine a greater deficiency than
asserted in the notice of deficiency and to determine if there should be
assessed any addition to tax or penalty provided in section 11-525 of
this chapter, if claim therefor is asserted at or before the hearing
under the rules of the tax appeals tribunal.
(2) Petition for refund. If the taxpayer files with the tax appeals
tribunal a petition for credit or refund for a taxable year, the tax
appeals tribunal may:
(A) determine a deficiency for such year as to any amount of deficien-
cy asserted at or before the hearing under rules of the tax appeals
tribunal, and within the period in which an assessment would be timely
under section 11-523 of this chapter, or
(B) deny so much of the amount for which credit or refund is sought in
the petition, as is offset by other issues pertaining to the same taxa-
ble year which are asserted at or before the hearing under rules of the
tax appeals tribunal.
(3) Opportunity to respond. A taxpayer shall be given a reasonable
opportunity to respond to any matters asserted by the commissioner of
finance under this subdivision.
(4) Restriction on further notices of deficiency. If the taxpayer
files a petition with the tax appeals tribunal under this section, no
notice of deficiency under section 11-521 of this chapter may thereafter
be issued by the commissioner of finance for the same taxable year,
except in case of fraud or with respect to a change or correction in
federal or New York state taxable income required to be reported under
section 11-519 of this chapter or with respect to a state change or
correction of sales and compensating use tax liability to be reported
under section 11-519.1 of this chapter.
(e) Burden of proof. In any case before the tax appeals tribunal under
this chapter, the burden of proof shall be upon the petitioner except
for the following issues, as to which the burden of proof shall be upon
the commissioner of finance:
(1) whether the petitioner has been guilty of fraud with intent to
evade tax;
(2) whether the petitioner is liable as the transferee of property of
a taxpayer, but not to show that the taxpayer was liable for the tax;
(3) whether the petitioner is liable for any increase in a deficiency
where such increase is asserted initially after a notice of deficiency
was mailed and a petition under this section filed, unless such increase
A. 10030 420
in deficiency is the result of a change or correction of federal or New
York state taxable income required to be reported under section 11-519
of this chapter, and of which change or correction the commissioner of
finance had no notice at the time he or she mailed the notice of defi-
ciency or unless such increase in deficiency is the result of a change
or correction of sales and compensating use tax liability required to be
reported under section 11-519.1 of this title, and of which change or
correction the commissioner of finance had no notice at the time he or
she mailed the notice of deficiency; and
(4) whether any person is liable for a penalty under subdivision (k)
of section 11-525 of this chapter.
(f) Evidence of related federal or state determination. Evidence of a
federal or state determination relating to issues raised in a case
before the tax appeals tribunal under this section shall be admissible,
under rules established by the tax appeals tribunal.
(g) Jurisdiction over other years. The tax appeals tribunal shall
consider such facts with relation to the taxes for other years as may be
necessary correctly to determine the tax for the taxable year, but in so
doing shall have no jurisdiction to determine whether or not the tax for
any other year has been overpaid or underpaid.
§ 11-530 Review of tax appeals tribunal's decision. (a) General. A
decision of the tax appeals tribunal sitting en banc shall be subject to
judicial review at the instance of any taxpayer affected thereby in the
manner provided by law for the review of a final decision or action of
administrative agencies of the city. An application by a taxpayer for
such review must be made within four months after notice of the decision
is sent by certified mail, return receipt requested, to the taxpayer and
the commissioner of finance.
(b) Judicial review exclusive remedy. The review of a decision of the
tax appeals tribunal provided by this section shall be the exclusive
remedy available to any taxpayer for the judicial determination of the
liability of the taxpayer for the taxes imposed by this chapter.
(c) Assessment pending review; review bond. Irrespective of any
restrictions on the assessment and collection of deficiencies, the
commissioner of finance may assess a deficiency determined by the tax
appeals tribunal in a decision rendered pursuant to section one hundred
seventy-one of the charter of the preceding municipality as it existed
January first, nineteen hundred ninety-four after the expiration of the
period specified in subdivision (a) of this section, notwithstanding
that an application for judicial review in respect of such deficiency
has been duly made by the taxpayer, unless the taxpayer, at or before
the time his or her application for review is made, has paid the defi-
ciency, has deposited with the commissioner of finance the amount of the
deficiency, or has filed with the commissioner of finance a bond, which
may be a jeopardy bond under subdivision (h) of section 11-534 of this
chapter, in the amount of the portion of the deficiency, including
interest and other amounts, in respect of which the application for
review is made and all costs and charges which may accrue against such
taxpayer in the prosecution of the proceeding, including costs of all
appeals, and with surety approved by a justice of the supreme court of
the state of New York, conditioned upon the payment of the deficiency,
including interests and other amounts, as finally determined and such
costs and charges. If, as a result of a waiver of the restrictions on
the assessment and collection of a deficiency, any part of the amount
determined by the tax appeals tribunal is paid after the filing of the
A. 10030 421
review bond, such bond shall, at the request of the taxpayer, be propor-
tionately reduced.
(d) Credit, refund or abatement after review. If the amount of a defi-
ciency determined by the tax appeals tribunal is disallowed in whole or
in part by the court of review, the amount so disallowed shall be cred-
ited, or refunded to the taxpayer, without the making of claim therefor,
or, if payment has not been made, shall be abated.
(e) Date of finality of tax appeals tribunal's decision. A decision of
the tax appeals tribunal shall become final upon the expiration of the
period specified in subdivision (a) of this section for making an appli-
cation for review, if no such application has been duly made within such
time, or if such application has been duly made, upon expiration of the
time for all further judicial review, or upon the rendering by the tax
appeals tribunal of a decision in accordance with the mandate of the
court on review. Notwithstanding the provisions of this subdivision,
for the purpose of making an application for review, the decision of the
tax appeals tribunal shall be deemed final on the date the notice of
decision is sent by certified mail to the taxpayer and the commissioner
of finance.
§ 11-531 Mailing rules; holidays; miscellaneous. (a) Timely mailing.
(1) If any return, declaration of estimated tax, claim, statement,
notice, petition, or other document required to be filed, or any payment
required to be made, within a prescribed period or on or before a
prescribed date under authority of any provision of this chapter is,
after such period or such date, delivered by the United States mail to
the commissioner of finance, tax appeals tribunal, bureau, office, offi-
cer or person with which or with whom such document is required to be
filed, or to which or to whom such payment is required to be made, the
date of the United States postmark stamped on the envelope shall be
deemed to be the date of delivery. This subdivision shall apply only if
the postmark date falls within the prescribed period or on or before the
prescribed date for the filing of such document, or for making the
payment, including any extension granted for such filing or payment, and
only if such document or payment was deposited in the mail, postage
prepaid, properly addressed to the commissioner of finance, tax appeals
tribunal, bureau, office, officer or person with which or with whom the
document is required to be filed or to which or to whom such payment is
required to be made. If any document is sent by United States registered
mail, such registration shall be prima facie evidence that such document
was delivered to the commissioner of finance, tax appeals tribunal,
bureau, office, officer or person to which or to whom addressed. To the
extent that the commissioner of finance or, where relevant, the tax
appeals tribunal shall prescribe by regulation, certified mail may be
used in lieu of registered mail under this section. Except as provided
in paragraph two of this subdivision, this subdivision shall apply in
the case of postmarks not made by the United States postal service only
if and to the extent provided by regulations of the commissioner of
finance or, where relevant, the tax appeals tribunal.
(2) (A) Any reference in paragraph one of this subdivision to the
United States mail shall be treated as including a reference to any
delivery service designated by the secretary of the treasury of the
United States pursuant to section seventy-five hundred two of the inter-
nal revenue code and any reference in paragraph one of this subdivision
to a United States postmark shall be treated as including a reference to
any date recorded or marked in the manner described in section seventy-
five hundred two of the internal revenue code by a designated delivery
A. 10030 422
service. If the commissioner of finance finds that any delivery service
designated by such secretary is inadequate for the needs of the city,
the commissioner may withdraw such designation for purposes of this
title. The commissioner may also designate additional delivery services
meeting the criteria of section seventy-five hundred two of the internal
revenue code for purposes of this title, or may withdraw any such desig-
nation if the commissioner of finance finds that a delivery service so
designated is inadequate for the needs of the city. Any reference in
paragraph one of this subdivision to the United States mail shall be
treated as including a reference to any delivery service designated by
the commissioner of finance and any reference in paragraph one of this
subdivision to a United States postmark shall be treated as including a
reference to any date recorded or marked in the manner described in
section seventy-five hundred two of the internal revenue code by a
delivery service designated by the commissioner of finance. Notwith-
standing the provisions of this paragraph, any withdrawal of designation
or additional designation by the commissioner of finance shall not be
effective for purposes of service upon the tax appeals tribunal, unless
and until such withdrawal of designation or additional designation is
ratified by the president of the tax appeals tribunal.
(B) Any equivalent of registered or certified mail designated by the
United States secretary of the treasury, or as may be designated by the
commissioner of finance pursuant to the same criteria used by such
secretary for such designations pursuant to section seventy-five hundred
two of the internal revenue code, shall be included within the meaning
of registered or certified mail as used in paragraph one of this subdi-
vision. If the commissioner of finance finds that any equivalent of
registered or certified mail designated by such secretary or the commis-
sioner of finance is inadequate for the needs of the city, the commis-
sioner of finance may withdraw such designation for purposes of this
title. Notwithstanding the provisions of this paragraph, any withdrawal
of designation or additional designation by the commissioner of finance
shall not be effective for purposes of service upon the tax appeals
tribunal, unless and until such withdrawal of designation or additional
designation is ratified by the president of the tax appeals tribunal.
(b) Last known address. For purposes of this chapter, a taxpayer's
last known address shall be given in the last return filed by the
taxpayer, unless subsequently to the filing of such return the taxpayer
shall have notified the commissioner of finance of a change of address.
(c) Last day a Saturday, Sunday or legal holiday. When the last day
prescribed under authority of this chapter, including any extension of
time, for performing any act falls on Saturday, Sunday, or a legal holi-
day in the state of New York, the performance of such act shall be
considered timely if it is performed on the next succeeding day which is
not a Saturday, Sunday or legal holiday.
(d) Certificate: unfiled return. For purposes of this chapter and
sections one hundred sixty-eight through one hundred seventy-two of the
charter of the preceding municipality, the certificate of the commis-
sioner of finance to the effect that a tax has not been paid, that a
return or declaration of estimated tax has not been filed, or that
information has not been supplied, as required by or under the
provisions of this title, shall be prima facie evidence that such tax
has not been paid, that such return or declaration has not been filed,
or that such information has not been supplied.
§ 11-532 Collection, levy and liens. (a) Collection procedures. The
taxes imposed by this chapter shall be collected by the commissioner of
A. 10030 423
finance, and the commissioner may establish the mode or time for the
collection of any amount due it under this chapter if not otherwise
specified. The commissioner of finance shall, upon request, give a
receipt for any sum collected under this chapter. The commissioner of
finance may authorize banks or trust companies which are depositories or
financial agents of the city to receive and give a receipt for any tax
imposed under this chapter in such manner, at such times, and under such
conditions as the commissioner of finance may prescribe; and the commis-
sioner of finance shall prescribe the manner, times and conditions under
which the receipt of such tax by such banks and trust companies is to be
treated as payment of such tax to the commissioner of finance.
(b) Notice and demand for tax. The commissioner of finance shall as
soon as practicable give notice to each person liable for any amount of
tax, addition to tax, penalty or interest, which has been assessed but
remains unpaid, stating the amount and demanding payment thereof. Such
notice shall be left at the dwelling or usual place of business of such
person or shall be sent by mail to such person's last known address.
Except where the commissioner of finance determines that collection
would be jeopardized by delay, if any tax is assessed prior to the last
date, including any date fixed by extension, prescribed for payment of
such tax, payment of such tax shall not be demanded until after such
date.
(c) Issuance of warrant after notice and demand. If any person liable
under this chapter for the payment of any tax, addition to tax, penalty
or interest neglects or refuses to pay the same within the ten days
after notice and demand herefor is given to such person under subdivi-
sion (b) of this section, the commissioner of finance may within six
years after the date of such assessment issue a warrant directed to the
sheriff of any county of the state, or to any officer or employee of the
department of finance, commanding such person to levy upon and sell such
person's real and personal property for the payment of the amount
assessed, with the cost of executing the warrant, and to return such
warrant to the commissioner of finance and pay to the commissioner the
money collected by virtue thereof within sixty days after the receipt of
the warrant. If the commissioner of finance finds that the collection
of the tax or other amount is in jeopardy, notice and demand for immedi-
ate payment of such tax may be made by the commissioner of finance and
upon failure or refusal to pay such tax or other amount the commissioner
of finance may issue a warrant without regard to the ten-day period
provided in this subdivision.
(d) Copy of warrant to be filed and lien to be created. Any sheriff
or officer or employee who receives a warrant under subdivision (c) of
this section shall within five days thereafter file a copy with the
clerk of the appropriate county. The clerk shall thereupon enter in the
judgment docket, in the column for judgment debtors, the name of the
taxpayer mentioned in the warrant, and in appropriate columns the tax or
other amounts for which the warrant is issued and the date when such
copy is filed; and such amount shall thereupon be a binding lien upon
the real, personal and other property of the taxpayer.
(e) Judgment. When a warrant has been filed with the county clerk the
commissioner of finance shall, on behalf of the city, be deemed to have
obtained judgment against the taxpayer for the tax or other amounts.
(f) Execution. The sheriff or officer or employee shall thereupon
proceed upon the judgment in all respects, with like effect, and in the
same manner prescribed by law in respect to executions issued against
property upon judgments of a court of record, and a sheriff shall be
A. 10030 424
entitled to the same fees for the sheriff's services in executing the
warrant, to be collected in the same manner. An officer or employee of
the department of finance may proceed in any county or counties of this
state and shall have all the powers of execution conferred by law upon
sheriffs, but shall be entitled to no fee or compensation in excess of
actual expenses paid in connection with the execution of the warrant.
(g) Taxpayer not a resident of this state. Where a notice and demand
under subdivision (b) of this section shall have been given to a taxpay-
er who is not then a resident of this state, and it appears to the
commissioner of finance that it is not practicable to find in this state
property of the taxpayer sufficient to pay the entire balance of tax or
other amount owing by such taxpayer who is not then a resident of this
state, the commissioner of finance may, in accordance with subdivision
(c) of this section, issue a warrant directed to an officer or employee
of the department of finance, a copy of which warrant shall be mailed by
certified or registered mail to the taxpayer at the taxpayer's last
known address, subject to the rules for mailing provided in subdivision
(a) of section 11-521 of this chapter. Such warrant shall command the
officer or employee to proceed in Richmond county, and such officer or
employee shall, within five days after receipt of the warrant, file the
warrant and obtain a judgment in accordance with this section. Thereup-
on the commissioner of finance may authorize the institution of any
action or proceeding to collect or enforce the judgment in any place and
by any procedure that a civil judgment of the supreme court of the state
of New York could be collected or enforced. The commissioner of finance
may also, in the commissioner's discretion, designate agents or retain
counsel for the purpose of collecting, outside the state of New York,
any unpaid taxes, additions to tax, penalties or interest which have
been assessed under this chapter against taxpayers who are not residents
of this state, may fix the compensation of such agents and counsel to be
paid out of money appropriated or otherwise lawfully available for
payment thereof, and may require of them bonds or other security for the
faithful performance of their duties, in such form and in such amount as
the commissioner of finance shall deem proper and sufficient.
(h) Action by city for recovery of taxes. Action may be brought by
the corporation counsel of the city at the instance of the commissioner
of finance as agent and trustee for the city to recover the amount of
any unpaid taxes, additions to tax, penalties or interest which have
been assessed under this chapter within six years prior to the date the
action is commenced.
(i) Release of lien or vacating warrant. The commissioner of finance,
if he or she finds that the interests of the city will not thereby be
jeopardized, and upon such conditions as the commissioner may require,
may release any property from the lien of any warrant or vacate such
warrant for unpaid taxes, additions to tax, penalties and interest filed
pursuant to subdivision (d) or (g) of this section, and such release or
vacating of the warrant may be recorded in the office of any recording
officer in which such warrant has been filed. The clerk shall thereupon
cancel and discharge as of the original date of docketing the vacated
warrant.
§ 11-533 Transferees. (a) General. The liability, at law or in equity,
of a transferee of property of a taxpayer for any tax, additions to tax,
penalty or interest due the commissioner of finance under this chapter,
shall be assessed, paid, and collected in the same manner and subject to
the same provisions and limitations as in the case of the tax to which
the liability relates, except that the period of limitations for assess-
A. 10030 425
ment against the transferee shall be extended by one year for each
successive transfer, in order, from the original taxpayer to the trans-
feree involved, but not by more than three years in the aggregate. The
term "transferee" includes donee, heir, legatee, devisee and distribu-
tee.
(b) Exceptions. (1) If before the expiration of the period of limi-
tations for assessment of liability of the transferee, a claim has been
filed by the commissioner of finance in any court against the original
taxpayer or the last preceding transferee based upon the liability of
the original taxpayer, then the period of limitation for assessment of
liability of the transferee shall in no event expire prior to one year
after such claim has been finally allowed, disallowed or otherwise
disposed of.
(2) If, before the expiration of the time prescribed in subdivision
(a) of this section or the immediately preceding paragraph of this
subdivision for the assessment of the liability, the commissioner of
finance and the transferee have both consented in writing to its assess-
ment after such time, the liability may be assessed at any time prior to
the expiration of the period agreed upon. The period so agreed upon may
be extended by subsequent agreements in writing made before the expira-
tion of the period previously agreed upon. For the purpose of determin-
ing the period of limitation on credit or refund to the transferee of
overpayments of tax made by such transferee or overpayments of tax made
by the transferor as to which the transferee is legally entitled to
credit or refund, such agreement and any extension thereof shall be
deemed an agreement and extension thereof referred to in subdivision (b)
of section 11-527 of this chapter. If the agreement is executed after
the expiration of the period of limitation for assessment against the
original taxpayer, then in applying the limitations under subdivision
(b) of section 11-527 of this chapter on the amount of the credit or
refund, the periods specified in subdivision (a) of section 11-527 of
this chapter shall be increased by the period from the date of such
expiration to the date of agreement.
(c) Deceased transferor. If any person is deceased, the period of
limitation for assessment against such person shall be the period that
would be in effect if such person had lived.
(d) Evidence. Notwithstanding the provisions of subdivision (e) of
section 11-537 of this chapter the commissioner of finance shall use his
or her powers to make available to the transferee evidence necessary to
enable the transferee to determine the liability of the original taxpay-
er and of any preceding transferees, but without undue hardship to the
original taxpayer or preceding transferee. See subdivision (e) of
section 11-529 of this chapter for rules as to burden of proof.
§ 11-534 Jeopardy assessment. (a) Authority for making. If the commis-
sioner of finance believes that the assessment or collection of a defi-
ciency will be jeopardized by delay, the commissioner shall, notwith-
standing the provision of sections 11-521 and 11-536 of this chapter,
and immediately assess such deficiency, together with all interest,
penalties and additions to tax provided for by law, and notice and
demand shall be made by the commissioner of finance for the payment
thereof.
(b) Notice of deficiency. If the jeopardy assessment is made before
any notice in respect to the tax to which the jeopardy assessment
relates has been mailed under section 11-521 of this chapter, then the
commissioner of finance shall mail a notice under such section within
sixty days after the making of the assessment.
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(c) Amount assessable before decision of tax appeals tribunal. The
jeopardy assessment may be made in respect of a deficiency greater or
less than that of which notice is mailed to the taxpayer and whether or
not the taxpayer has heretofore filed a petition with the tax appeals
tribunal. The commissioner of finance may, at any time before the tax
appeals tribunal renders its decision, abate such assessment, or any
unpaid portion thereof, to the extent that the commissioner believes the
assessment to be excessive in amount. The tax appeals tribunal may in
its decision redetermine the entire amount of the deficiency and of all
amounts assessed at the same time in connection therewith.
(d) Amount assessable after decision of tax appeals tribunal. If the
jeopardy assessment is made after the decision of the tax appeals tribu-
nal is rendered, such assessment may be made only in respect of the
deficiency determined by the tax appeals tribunal in its decision.
(e) Expiration of right to assess. A jeopardy assessment may not be
made after the decision of the tax appeals tribunal has become final or
after the taxpayer has made an application for review of the decision of
the tax appeals tribunal.
(f) Collection of unpaid amounts. When a petition has been filed with
the tax appeals tribunal and when the amount which should have been
assessed has been determined by a decision of the tax appeals tribunal
which has become final, then any unpaid portion, the collection of which
has been stayed by bond, shall be collected as part of the tax upon
notice and demand from the commissioner of finance, and any remaining
portion of the assessment shall be abated. If the amount already
collected exceeds the amount determined as the amount which should have
been assessed, such excess shall be credited or refunded to the taxpayer
as provided in section 11-526 of this chapter without the filing of
claim therefor. If the amount determined as the amount which should have
been assessed is greater than the amount actually assessed, then the
difference shall be assessed and shall be collected as part of the tax
upon notice and demand from the commissioner of finance.
(g) Abatement if jeopardy does not exist. The commissioner of finance
may abate the jeopardy assessment if the commissioner finds that jeopar-
dy does not exist. Such abatement may not be made after a decision of
the tax appeals tribunal in respect of the deficiency has been rendered
or, if no petition is filed with the tax appeals tribunal, after the
expiration of the period for filing such petition. The period of limita-
tion on the making of assessments and levy or a proceeding for
collection, in respect of any deficiency, shall be determined as if the
jeopardy assessment so abated had not been made, except that the running
of such period shall in any event be suspended for the period from the
date of such jeopardy assessment until the expiration of the tenth day
after the day on which such jeopardy assessment is abated.
(h) Bond to stay collection. The collection of the whole or any amount
of any jeopardy assessment may be stayed by filing with the commissioner
of finance, within such time as may be fixed by regulation, a bond in an
amount equal to the amount as to which the stay is desired, conditioned
upon the payment of the amount, together with interest thereon, the
collection of which is stayed at the time at which, but for the making
of the jeopardy assessment, such amount would be due. Upon the filing of
the bond the collection of so much of the amount assessed as is covered
by the bond shall be stayed. The taxpayer shall have the right to waive
such stay at any time in respect of the whole or any part of the amount
covered by the bond, and if as a result of such waiver any part of the
amount covered by the bond is paid, then the bond shall at the request
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of the taxpayer, be proportionately reduced. If any portion of the
jeopardy assessment is abated, or if a notice or deficiency under
section 11-521 of this chapter is mailed to the taxpayer in a lesser
amount, the bond shall, at the request of the taxpayer, be proportion-
ately reduced.
(i) Petition to tax appeals tribunal. If the bond is given before the
taxpayer has filed his or her petition under section 11-529 of this
chapter, the bond shall contain a further condition that if a petition
is not filed within the period provided in such section, then the amount
the collection of which is stayed by the bond, will be paid on notice
and demand at any time after the expiration of such period, together
with interest thereon from the date of the jeopardy notice and demand to
the date of notice and demand under this subdivision. The bond shall be
conditioned upon the payment of so much of such assessment, collection
of which is stayed by the bond, as is not abated by a decision of the
tax appeals tribunal which has become final. If the tax appeals tribunal
determines that the amount assessed is greater than the amount which
should have been assessed, then the bond shall, at the request of the
taxpayer, be proportionately reduced when the decision of the tax
appeals tribunal is rendered.
(j) Stay of sale of seized property pending tax appeals tribunal deci-
sion. Where a jeopardy assessment is made, the property seized for the
collection of the tax shall not be sold:
(1) if subdivision (b) of this section is applicable, prior to the
issuance of the notice of deficiency and the expiration of the time
provided in section 11-529 of this chapter for filing a petition with
the tax appeals tribunal, and
(2) if a petition is filed with the tax appeals tribunal, whether
before or after the making of such jeopardy assessment, prior to the
expiration of the period during which the assessment of the deficiency
would be prohibited if subdivision (a) of this section were not applica-
ble.
Such property may be sold if the taxpayer consents to the sale, or if
the commissioner of finance determines that the expenses of conservation
and maintenance will greatly reduce the net proceeds, or if the property
is perishable.
(k) Interest. For the purpose of subdivision (a) of section 11-524 of
this chapter, the last date prescribed for payment shall be determined
without regard to any notice and demand for payment issued under this
section prior to the last date otherwise prescribed for such payment.
(l) Early termination of taxable year. If the commissioner of finance
finds that a taxpayer designs quickly to depart from this state or to
remove his or her property therefrom, or to conceal himself or herself
or his or her property therein, or to do any other act tending to preju-
dice or to render wholly or partly ineffectual proceedings to collect
the income tax for the current or the preceding taxable year unless such
proceedings be brought without delay, the commissioner of finance shall
declare the taxable period for such taxpayer immediately terminated, and
shall cause notice of such finding and declaration to be given to the
taxpayer, together with a demand for immediate payment of the tax for
the taxable period so declared terminated and of the tax for the preced-
ing taxable year or so much of such tax as is unpaid, whether or not the
time otherwise allowed by law for filing return and paying the tax has
expired; and such taxes shall thereupon become immediately due and paya-
ble. In any proceeding brought to enforce payment of taxes made due and
payable by virtue of the provisions of this subdivision, the finding of
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the commissioner of finance, whether made after notice to the taxpayer
or not, shall be for all purposes presumptive evidence of jeopardy.
(m) Reopening of taxable period. Notwithstanding the termination of
the taxable period of the taxpayer by the commissioner of finance as
provided in subdivision (l) of this section, the commissioner of finance
may reopen such taxable period each time the taxpayer is found by the
commissioner of finance to have received income, within the current
taxable year, since the termination of such period. A taxable period so
terminated by the commissioner of finance may be reopened by the taxpay-
er if the taxpayer files with the commissioner of finance a true and
accurate return of taxable income and credits allowed under this chapter
for taxable period, together with such other information as the commis-
sioner of finance may by regulations prescribe.
(n) Furnishing of bond where taxable year is closed by the commission-
er of finance. Payment of taxes shall not be enforced by any proceedings
under the provisions of subdivision (l) of this section prior to the
expiration of the time otherwise allowed for paying such taxes if the
taxpayer furnishes, under regulations prescribed by the commissioner of
finance, a bond to insure the timely making of returns with respect to,
and payment of, such taxes or any taxes under this chapter for prior
years.
§ 11-535 Criminal penalties; cross-reference. For criminal penalties,
see chapter forty of this title.
§ 11-536 Armed forces relief provisions. (a) Time to be disregarded.
In the case of an individual serving in the armed forces of the United
States or serving in support of such armed forces, in an area designated
by the president of the United States by executive order as a "combat
zone" at any time during the period designated by the president by exec-
utive order as the period of combatant activities in such zone, or
hospitalized outside the state as a result of injury received while
serving in such an area during such time, the period of service in such
area, plus the period of continuous hospitalization outside the state
attributable to such injury, and the next one hundred eighty days there-
after, shall be disregarded in determining, under this chapter, in
respect of the tax liability, including any interest, penalty, or addi-
tion to the tax, of such individual:
(1) Whether any of the following acts was performed within the time
prescribed therefor:
(A) filing any return of tax;
(B) payment of any tax or any installment thereof or of any other
liability to the commissioner of finance, in respect thereof;
(C) filing a petition with the tax appeals tribunal for credit or
refund or for redetermination of a deficiency, or application for review
of a decision rendered by the tax appeals tribunal;
(D) allowance of a credit or refund of tax;
(E) filing a claim for credit or refund of tax;
(F) assessment of tax;
(G) giving or making any notice or demand for the payment of any tax,
or with respect to any liability to the commissioner of finance in
respect of tax;
(H) collection, by the commissioner of finance, by levy or otherwise
of the amount of any liability in respect of tax;
(I) bringing suit by the city, or any officer, on its behalf, in
respect of any liability in respect of tax; and
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(J) any other act required or permitted under this chapter or speci-
fied in regulations prescribed under this section by the commissioner of
finance.
(2) The amount of any credit or refund (including interest).
(b) Action taken before ascertainment of right to benefits. The
assessment or collection of the tax imposed by this chapter or of any
liability to the commissioner of finance in respect of such tax, or any
action or proceeding by or on behalf of the commissioner of finance in
connection therewith, may be made, taken, begun, or prosecuted in
accordance with law, without regard to the provisions of subdivision (a)
of this section, unless prior to such assessment, collection, action, or
proceeding it is ascertained that the person concerned is entitled to
the benefit of subdivision (a) of this section.
(c) Members of armed forces dying in action. In the case of any person
who dies during an induction period while in active service as a member
of the armed forces of the United States, if such death occurred while
serving in a combat zone during a period of combatant activities in such
zone, as described in subdivision (a) of this section, or as a result of
wounds, disease or injury incurred while so serving, the tax imposed by
this chapter shall not apply with respect to the taxable year in which
falls the date of such person's death, or with respect to any prior
taxable year ending on or after the first day he or she so served in a
combat zone, and no returns shall be required in behalf of such person
or such person's estate for such year; and the tax for any such taxable
year which is unpaid at the date of his or her death, including inter-
est, additions to tax and penalties, if any, shall not be assessed and
if assessed, the assessment shall be abated and, if collected, shall be
refunded to the legal representative of such person's estate if one has
been appointed and has qualified, or, if no legal representative has
been appointed or has qualified, to such person's surviving spouse.
§ 11-537 General powers of commissioner of finance. (a) General. The
commissioner of finance shall administer and enforce the tax imposed by
this chapter and the commissioner is authorized to make such rules and
regulations, and to require such facts and information to be reported,
as the commissioner may deem necessary to enforce the provision of this
chapter; and the commissioner may delegate his or her powers and func-
tions under all parts of this chapter to one of the commissioner's depu-
ties or to any employee or employees of the commissioner's department.
(b) Examination of books and witnesses. The commissioner of finance
for the purpose of ascertaining the correctness of any return, or for
the purpose of making an estimate of tax of any person, shall have power
to examine or to cause to have examined, by any agent or representative
designated by the commissioner for that purpose, any books, papers,
records or memoranda bearing upon the matters required to be included in
the return, and may require the attendance of the person rendering the
return or any officer or employee of such person, or the attendance of
any other person having knowledge in the premises, and may take testimo-
ny and require proof material for the commissioner's information, with
power to administer oaths to such person or persons.
(c) Abatement authority. The commissioner of finance, of his or her
own motion, may abate any small unpaid balance of an assessment of tax
under this part, or any liability in respect thereof, if the commis-
sioner of finance determines under uniform rules prescribed by the
commissioner that the administration and collection costs involved would
not warrant collection of the amount due. The commissioner may also
abate, of his or her own motion, the unpaid portion of the assessment of
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any tax or any liability in respect thereof, which is excessive in
amount, or is assessed after the expiration of the period of limitation
properly applicable thereto, or is erroneously or illegally assessed.
No claim for abatement under this subdivision shall be filed by a
taxpayer.
(d) Special refund authority. Where no questions of fact or law are
involved and it appears from the records of the commissioner of finance
that any moneys have been erroneously or illegally collected from any
taxpayer or other person, or paid by such taxpayer or other person under
a mistake of facts, pursuant to the provisions of this chapter, the
commissioner of finance at any time, without regard to any period of
limitations, shall have the power, upon making a record of his or her
reasons therefor in writing, to cause such moneys so paid and being
erroneously and illegally held to be refunded.
(e) Cooperation with the United States, this state and other states.
Notwithstanding the provisions of section 11-538 of this chapter, the
commissioner of finance may permit the secretary of the treasury of the
United States or the secretary's delegates, or the proper officer of
this or any other state imposing an income tax upon the incomes of indi-
viduals, or the authorized representative of any such officer, to
inspect any return filed under this chapter or may furnish to such offi-
cer or his or her authorized representative an abstract of any such
return or supply such officer with information concerning an item
contained in any such return, or disclosed by any investigation of tax
liability under this chapter, but such permission shall be granted or
such information furnished to such officer or such officer's represen-
tative only if the laws of the United States or of such state, as the
case may be, grant substantially similar privileges to the commissioner
of finance and such information is to be used for tax purposes only; and
provided further the commissioner of finance may furnish to the secre-
tary of the treasury of the United States or the secretary's delegates
or to the tax commission of the state of New York or its delegates such
returns filed under this chapter and other tax information, as he or she
may consider proper for use in court actions or proceedings under the
internal revenue code or the tax law of the state of New York, whether
civil or criminal, where a written request therefor has been made to the
commissioner of finance by the secretary of the treasury or by such tax
commission or by their delegates, provided the laws of the United States
or the laws of the state of New York grant substantially similar powers
to the secretary of the treasury of the United States or the secretary's
delegates or to such tax commission or its delegates. Where the commis-
sioner of finance has so authorized use of returns or other information
in such actions or proceedings, officers and employees of the department
of finance may testify in such actions or proceedings in respect to such
returns or other information.
(f) (1) Authority to set interest rates. The commissioner of finance
shall set the overpayment and underpayment rates of interest to be paid
pursuant to sections 11-524, 11-525 and 11-528 of this chapter, but if
no such rate or rates of interest are set, such overpayment rate shall
be deemed to be set at six percent per annum and such underpayment rate
shall be deemed to be set at seven and one-half percent per annum. Such
overpayment and underpayment rates shall be the rates prescribed in
paragraph two of this subdivision, but the underpayment rate shall not
be less than seven and one-half percent per annum. Any such rates set by
the commissioner of finance shall apply to taxes, or any portion there-
of, which remain or become due or overpaid on or after the date on which
A. 10030 431
such rates become effective and shall apply only with respect to inter-
est computed or computable for periods or portions of periods occurring
in the period during which such rates are in effect.
(2) General rule. (A) Overpayment rate. The overpayment rate set under
this subdivision shall be the sum of (i) the federal short-term rate as
provided under paragraph three of this subdivision, plus (ii) two
percentage points.
(B) Underpayment rate. The underpayment rate set under this subdivi-
sion shall be the sum of (i) the federal short-term rate as provided
under paragraph three of this subdivision, plus (ii) seven percentage
points.
(3) Federal short-term rate. For purposes of this subdivision:
(A) The federal short-term rate for any month shall be the federal
short-term rate determined by the United States secretary of the treas-
ury during such month in accordance with subsection (d) of section
twelve hundred seventy-four of the internal revenue code for use in
connection with section six thousand six hundred twenty-one of the
internal revenue code. Any such rate shall be rounded to the nearest
full percent, or, if a multiple of one-half of one percent, such rate
shall be increased to the next highest full percent.
(B) Period during which rate applies.
(i) In general. Except as provided in clause (ii) of this subpara-
graph, the federal short-term rate for the first month in each calendar
quarter shall apply during the first calendar quarter beginning after
such month.
(ii) Special rule for the month of September, nineteen hundred eight-
y-nine. The federal short-term rate for the month of April, nineteen
hundred eighty-nine shall apply with respect to setting the overpayment
and underpayment rates for the month of September, nineteen hundred
eighty-nine.
(4) Publication of interest rates. The commissioner of finance shall
cause to be published in the City Record, and give other appropriate
general notice of, the interest rates to be set under this subdivision
no later than twenty days preceding the first day of the calendar quar-
ter during which such interest rates apply. The setting and publication
of such interest rates shall not be included within paragraph (a) of
subdivision five of section one thousand forty-one of the city charter
of the preceding municipality as it existed January first, nineteen
hundred ninety-four relating to the definition of a rule.
(5) Cross-reference. For provisions relating to the power of the
commissioner of finance to abate small amounts of interest, see subdivi-
sion (c) of this section.
(g) In computing the amount of any interest required to be paid under
this chapter by the commissioner of finance or by the taxpayer, or any
other amount determined by reference to such amount of interest, such
interest and such amount shall be compounded daily. The provisions of
this subdivision shall not apply for purposes of computing the amount of
any addition to tax for failure to pay estimated tax under subdivision
(c) of section 11-525 of this chapter.
§ 11-538 Secrecy requirement and the penalties for violation. 1.
Except in accordance with proper judicial order or as otherwise provided
by law, it shall be unlawful for the commissioner of finance, the
department of finance of the city, any officer or employee of the
department of finance of the city, any person engaged or retained by
such department on an independent contract basis, any depository to
which any return may be delivered as provided in subdivision four of
A. 10030 432
this section, any officer or employee of such depository, the tax
appeals tribunal, any commissioner or employee of such tribunal, or any
person who, pursuant to this section, is permitted to inspect any report
or return or to whom a copy, an abstract or a portion of any report or
return is furnished, or to whom any information contained in any report
or return is furnished, to divulge or make known in any manner the
amount of income or any particulars set forth or disclosed in any report
or return required under this chapter. The officers charged with the
custody of such reports and returns shall not be required to produce any
of them or evidence of anything contained in them in any action or
proceeding in any court, except on behalf of the city in an action or
proceeding under the provisions of this chapter or in any other action
or proceeding involving the collection of a tax due under this chapter
to which the city is a party or a claimant, or on behalf of any party to
any action or proceeding under the provisions of this chapter when the
reports, returns or facts shown thereby are directly involved in such
action or proceeding, in any of which events the court may require the
production of, and may admit in evidence, so much of said reports,
returns or of the facts shown thereby, as are pertinent to the action or
proceeding and no more. Nothing herein shall be construed to prohibit
the delivery to a taxpayer or to the taxpayer's duly authorized repre-
sentative of a certified copy of any return or report filed in
connection with his or her tax or to prohibit the publication of statis-
tics so classified as to prevent the identification of particular
reports or returns and the items thereof, or the inspection by the
corporation counsel or other legal representatives of the city of the
report or return of any taxpayer who shall bring action to set aside or
review the tax based thereon, or against whom an action or proceeding
under this chapter has been recommended by the commissioner of finance
or the corporation counsel or has been instituted, or the inspection of
the reports or returns required under this chapter by the duly desig-
nated officers or employees of the city for purposes of an audit under
this chapter or an audit authorized by the enacting of this chapter.
Reports and returns shall be preserved for three years and thereafter
until the commissioner of finance orders them to be destroyed.
2. Any officer or employee of the city or the state who willfully
violates the provisions of subdivision one of this section shall be
dismissed from office and be incapable of holding any public office in
the city or the state for a period of five years thereafter.
3. Cross-reference: For criminal penalties, see chapter forty of this
title.
4. Notwithstanding the provisions of subdivision one of this section,
the commissioner of finance, in his or her discretion, may require or
permit any or all persons liable for any tax imposed by this chapter, to
make payments on account of estimated tax and payment of any tax, penal-
ty or interest imposed by this chapter to banks, banking houses or trust
companies designated by the commissioner of finance and to file declara-
tions of estimated tax and reports and returns with such banks, banking
houses or trust companies as agents of the commissioner of finance, in
lieu of making any such payment directly to the commissioner of finance.
However, the commissioner of finance shall designate only such banks,
banking houses or trust companies as are depositories or financial
agents of the city.
5. This section shall be deemed a state statute for purposes of para-
graph (a) of subdivision two of section eighty-seven of the public offi-
cers law.
A. 10030 433
6. Notwithstanding anything in subdivision one of this section to the
contrary, if a taxpayer has petitioned the tax appeals tribunal for
administrative review as provided in section one hundred seventy of the
charter of the preceding municipality as it existed January first, nine-
teen hundred ninety-four, the commissioner of finance shall be author-
ized to present to the tribunal any report or return of such taxpayer,
or any information contained therein or relating thereto, which may be
material or relevant to the proceeding before the tribunal. The tax
appeals tribunal shall be authorized to publish a copy or a summary of
any decision rendered pursuant to section one hundred seventy-one of the
charter of the preceding municipality as it existed January first, nine-
teen hundred ninety-four.
7. Notwithstanding anything in subdivision one of this section, the
commissioner of finance may disclose to a taxpayer or a taxpayer's
related member, as defined in subdivision (e) of section 11-506 of this
chapter, information relating to any royalty paid, incurred or received
by such taxpayer or related member to or from the other, including the
treatment of such payments by the taxpayer or the related member in any
report or return transmitted to the commissioner of finance under this
title.
§ 11-539 Inconsistencies with other laws. If any provision of this
chapter is inconsistent with, in conflict with, or contrary to any other
provision of law, such provision of this chapter shall prevail over such
other provision and such other provision shall be deemed to have been
amended, superseded or repealed to the extent of such inconsistency,
conflict or contrariety.
§ 11-540 Disposition of revenues. All revenues resulting from the
imposition of the taxes under this chapter shall be paid into the treas-
ury of the city and shall be credited to and deposited in the general
fund of the city, but no part of such revenues may be expended unless
appropriated in the annual budget of the city.
CHAPTER 6
CITY BUSINESS
TAXES
SUBCHAPTER 1
GENERAL PROVISIONS
§ 11-601 Definitions. When used in subchapters one through five:
1. "Taxpayer" means any corporation, association or other entity or
individual subject to tax under this chapter;
2. "State", "the state" or "this state" means the state of New York;
3. "Tax law", "insurance law", "private housing finance law", "envi-
ronmental conservation law", "public housing law", "state finance law",
"general municipal law", "public service law", "workers' compensation
law", "business corporation law", "civil practice law and rules", "crim-
inal procedure law", and "banking law" refer to laws of the state;
4. "Superintendent of insurance", and "commissioner of health" refer
to officials of the state;
5. "Commissioner of finance" means the commissioner of finance of the
city;
6. "Department of finance" means the department of finance of the
city;
7. "Domestic corporation" means a corporation organized under the laws
of the state; and
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8. "Tax appeals tribunal" means the tax appeals tribunal established
by section one hundred sixty-eight of the charter of the preceding muni-
cipality as it existed January first, nineteen hundred ninety-four.
9. "REIT" means a real estate investment trust as defined in section
eight hundred fifty-six of the internal revenue code.
10. "RIC" means a regulated investment company as defined in section
eight hundred fifty-one of the internal revenue code.
11. "Captive REIT" means a REIT (a) that is not regularly traded on an
established securities market, and (b) more than fifty percent of the
voting stock of which is owned or controlled, directly or indirectly, by
a single corporation that is not exempt from federal income tax and is
not a REIT. Any voting stock in a REIT that is held in a segregated
asset account of a life insurance corporation, as described in section
eight hundred seventeen of the internal revenue code, shall not be taken
into account for purposes of determining whether a REIT is a captive
REIT.
12. "Captive RIC" means a RIC (a) that is not regularly traded on an
established securities market, and (b) more than fifty percent of the
voting stock of which is owned or controlled, directly or indirectly, by
a single corporation that is not exempt from federal income tax and is
not a RIC. Any voting stock in a RIC that is held in a segregated asset
account of a life insurance corporation, as described in section eight
hundred seventeen of the internal revenue code, shall not be taken into
account for purposes of determining whether a RIC is a captive RIC.
13. Unless a different meaning is clearly required, any term used in
this chapter shall have the same meaning as when used in a comparable
context in the laws of the United States relating to federal income
taxes, and any reference to the laws of the United States shall mean the
provisions of the internal revenue code of nineteen hundred fifty-four,
and amendments thereto, and other provisions of the laws of the United
States relating to federal income taxes, as the same are included in the
appendix to this chapter. The quotation of the aforesaid laws of the
United States is intended to make them a part of any appropriate chapter
and to avoid constitutional uncertainties which might result if such
laws were merely incorporated by reference. The quotation of a
provision of the federal internal revenue code or of any other law of
the United States shall not necessarily mean that it is applicable to or
has relevance to any of the chapters.
SUBCHAPTER 2
GENERAL CORPORATION TAX
§ 11-602 Definitions. When used in this subchapter:
1. (a) "Corporation" includes (1) an association within the meaning of
paragraph three of subsection (a) of section seventy-seven hundred one
of the internal revenue code, including a limited liability company, (2)
a joint-stock company or association, (3) a publicly traded partnership
treated as a corporation for purposes of the internal revenue code
pursuant to section seventy-seven hundred four thereof and (4) any busi-
ness conducted by a trustee or trustees wherein interest or ownership is
evidenced by certificate or other written instrument;
(b) (1) Notwithstanding paragraph (a) of this subdivision, an unincor-
porated organization that (i) is described in subparagraph one or three
of such paragraph (a) and (ii) was subject to the provisions of chapter
five of this title for its taxable year beginning in nineteen hundred
ninety-five, may make a one-time election not to be treated as a corpo-
A. 10030 435
ration and, instead, to continue to be subject to the provisions of
chapter five of this title for its taxable years beginning in nineteen
hundred ninety-six and thereafter. Such election shall be made on the
return prescribed pursuant to such chapter five for such electing organ-
ization's taxable year beginning in nineteen hundred ninety-six, which
shall be filed on or before the due date, determined with regard to
extensions, for filing such return.
(2) An election under this paragraph shall continue to be in effect
until revoked by the unincorporated organization. An election under this
paragraph shall be revoked by the filing of a return under this subchap-
ter for the first taxable year with respect to which such revocation is
to be effective, which return shall be filed on or before the due date,
determined with regard to extensions, for filing such return. In no
event shall such election or revocation be for a part of a taxable year.
(c) Notwithstanding paragraph (a) of this subdivision, a corporation
shall not include an entity classified as a partnership for federal
income tax purposes.
2. "Subsidiary" means a corporation of which over fifty per centum of
the number of shares of stock entitling the holders thereof to vote for
the election of directors or trustees is owned by the taxpayer;
3. "Subsidiary capital" means investments in the stock of subsidiaries
and any indebtedness from subsidiaries, exclusive of accounts receivable
acquired in the ordinary course of trade or business for services
rendered or for sales of property held primarily for sale to customers,
whether or not evidenced by written instrument, on which interest is not
claimed and deducted by the subsidiary for purposes of taxation under
this subchapter or subchapter three of this chapter, provided, however,
that, in the discretion of the commissioner of finance, there shall be
deducted from subsidiary capital any liabilities which are directly or
indirectly attributable to subsidiary capital;
4. "Investment capital" means investments in stocks, bonds and other
securities, corporate and governmental, not held for sale to customers
in the regular course of business, exclusive of subsidiary capital and
stock issued by the taxpayer, provided, however, that, in the discretion
of the commissioner of finance, there shall be deducted from investment
capital any liabilities which are directly or indirectly attributable to
investment capital; and provided, further, that investment capital shall
not include any such investments the income from which is excluded from
entire net income pursuant to the provisions of paragraph (c-1) of
subdivision eight of this section, and that investment capital shall be
computed without regard to any liabilities directly or indirectly
attributable to such investments, but only if air carriers organized in
the United States and operating in the foreign country or countries in
which the taxpayer has its major base of operations and in which it is
organized, resident or headquartered, if not in the same country as its
major base of operations, are not subject to any tax based on or meas-
ured by capital imposed by such foreign country or countries or any
political subdivision thereof, or if taxed are provided an exemption,
equivalent to that provided for herein, from any tax based on or meas-
ured by capital imposed by such foreign country or countries and from
any such tax imposed by any political subdivision thereof;
5. "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 commis-
sioner of finance, any deductions allowable in computing entire net
income which are directly or indirectly attributable to investment capi-
A. 10030 436
tal or investment income, and (b) such portion of any net operating loss
deduction allowable in computing entire net income, as the investment
income, before such deduction, bears to entire net income, before such
deduction, provided, however, that in no case shall investment income
exceed entire net income;
6. (a) "Business capital" means all assets, other than subsidiary
capital, investment capital and stock issued by the taxpayer, less
liabilities not deducted from subsidiary or investment capital except
that cash on hand and on deposit shall be treated as investment capital
or as business capital as the taxpayer may elect;
(b) Provided, however, "business capital" shall not include assets to
the extent employed for the purpose of generating income which is
excluded from entire net income pursuant to the provisions of paragraph
(c-1) of subdivision eight of this section and shall be computed without
regard to liabilities directly or indirectly attributable to such
assets, but only if air carriers organized in the United States and
operating in the foreign country or countries in which the taxpayer has
its major base of operations and in which it is organized, resident or
headquartered, if not in the same country as its major base of oper-
ations, are not subject to any tax based on or measured by capital
imposed by such foreign country or countries or any political subdivi-
sion thereof, or if taxed, are provided an exemption, equivalent to that
provided for herein, from any tax based on or measured by capital
imposed by such foreign country or countries and from any such tax
imposed by any political subdivision thereof.
7. "Business income" means entire net income minus investment income;
8. "Entire net income" means total net income from all sources, which
shall be presumably the same as the entire taxable income, but not
alternative minimum taxable income,
(i) which the taxpayer is required to report to the United States
treasury department, or
(ii) which the taxpayer would have been required to report to the
United States treasury department if it had not made an election under
subchapter s of chapter one of the internal revenue code, or
(iii) which the taxpayer, in the case of a corporation which is exempt
from federal income tax, other than the tax on unrelated business taxa-
ble income imposed under section five hundred eleven of the internal
revenue code, but which is subject to tax under this subchapter, would
have been required to report to the United States treasury department
but for such exemption, or
(iv) which the taxpayer would have been required to report to the
United States treasury department if no election had been made to treat
the taxpayer as a qualified subchapter s subsidiary under paragraph
three of subsection (b) of section thirteen hundred sixty-one of the
internal revenue code, except as provided in this paragraph, and subject
to any modification required by paragraphs (d) and (e) of subdivision
three of section 11-604 of this subchapter.
(a) Entire net income shall not include:
(1) income, gains and losses from subsidiary capital which do not
include the amount of a recovery in respect of any war loss;
(2) fifty percent of dividends other than from subsidiaries, except
that entire net income shall include one hundred percent of dividends on
shares of stock with respect to which a dividend deduction is disallowed
by subsection (c) of section two hundred forty-six of the internal
revenue code;
A. 10030 437
(2-a) any amounts treated as dividends pursuant to section seventy-
eight of the internal revenue code and not otherwise deductible under
subparagraphs one and two of this paragraph;
(3) bona fide gifts;
(4) income and deductions with respect to amounts received from school
districts and from corporations and associations, organized and operated
exclusively for religious, charitable or educational purposes, no part
of the net earnings of which inures to the benefit of any private share-
holder or individual, for the operation of school buses;
(5) any refund or credit of a tax imposed under this chapter, or
imposed by article nine or nine-A or thirty-two of the tax law as such
article was in effect on December thirty-first, two thousand fourteen,
for which tax no exclusion or deduction was allowed in determining the
taxpayer's entire net income under this subchapter or subchapter three
of this chapter for any prior year;
(6) in the case of a taxpayer who is separately or as a partner of a
partnership doing an insurance business as a member of the New York
insurance exchange described in section six thousand two hundred one of
the insurance law, any item of income, gain, loss or deduction of such
business which is the taxpayer's distributive or pro rata share for
federal income tax purposes or which the taxpayer is required to take
into account separately for federal income tax purposes;
(7) that portion of wages and salaries paid or incurred for the taxa-
ble year for which a deduction is not allowed pursuant to the provisions
of section two hundred eighty C of the internal revenue code;
(8) for taxable years beginning after December thirty-first, nineteen
hundred eighty-one, except with respect to property which is a qualified
mass commuting vehicle described in subparagraph (D) of paragraph eight
of subsection (f) of section one hundred sixty-eight of the internal
revenue code, relating to qualified mass commuting vehicles, and proper-
ty of a taxpayer principally engaged in the conduct of an aviation,
steamboat, ferry or navigation business, or two or more of such busi-
nesses, which is placed in service before taxable years beginning in
nineteen hundred eighty-nine, any amount which is included in the
taxpayer's federal taxable income solely as a result of an election made
pursuant to the provisions of such paragraph eight as it was in effect
for agreements entered into prior to January first, nineteen hundred
eighty-four;
(9) for taxable years beginning after December thirty-first, nineteen
hundred eighty-one, except with respect to property which is a qualified
mass commuting vehicle described in subparagraph (D) of paragraph eight
of subsection (f) of section one hundred sixty-eight of the internal
revenue code, relating to qualified mass commuting vehicles, and proper-
ty of a taxpayer principally engaged in the conduct of an aviation,
steamboat, ferry or navigation business, or two or more of such busi-
nesses, which is placed in service before taxable years beginning in
nineteen hundred eighty-nine, any amount which the taxpayer could have
excluded from federal taxable income had it not made the election
provided for in such paragraph eight as it was in effect for agreements
entered into prior to January first, nineteen hundred eighty-four;
(10) the amount deductible pursuant to paragraph (j) of this subdivi-
sion;
(11) upon the disposition of property to which paragraph (j) of this
subdivision applies, the amount, if any, by which the aggregate of the
amounts described in subparagraph eleven of paragraph (b) of this subdi-
vision attributable to such property exceeds the aggregate of the
A. 10030 438
amounts described in paragraph (j) of this subdivision attributable to
such property;
(12) for taxable years ending after September tenth, two thousand one,
the amount deductible pursuant to paragraph (k) of this subdivision;
(13) the amount deductible pursuant to paragraph (o) of this subdivi-
sion;
(14) any amount excepted, for purposes of subsection (a) of section
one hundred eighteen of the internal revenue code, from the term
"contribution to the capital of the taxpayer" by paragraph two of
subsection (b) of section one hundred eighteen of the internal revenue
code;
(15) the amount of any gain added back to determine entire net income
in a previous taxable year pursuant to subparagraph nineteen of para-
graph (b) of this subdivision that is included in federal gross income
for the taxable year; and
(16) the amount of any grant received through either the COVID-19
pandemic small business recovery grant program, pursuant to section
sixteen-ff of the New York state urban development corporation act, or
the small business resilience grant program administered by the depart-
ment of small business services, to the extent the amount of either such
grant is included in federal taxable income.
(a-1) Notwithstanding any other provision of this subchapter, for
taxable years beginning on or after August first, two thousand two, in
the case of a taxpayer that is a partner in a partnership subject to the
tax imposed by chapter eleven of this title as a utility, as defined in
subdivision six of section 11-1101 of such chapter, entire net income
shall not include the taxpayer's distributive or pro rata share for
federal income tax purposes of any item of income, gain, loss or
deduction of such partnership, or any item of income, gain, loss or
deduction of such partnership that the taxpayer is required to take into
account separately for federal income tax purposes.
(b) Entire net income shall be determined without the exclusion,
deduction or credit of:
(1) the amount of any specific exemption or credit allowed in any law
of the United States imposing any tax on or measured by the income of
any corporation,
(2) any part of any income from dividends or interest on any kind of
stock, securities, or indebtedness, except as provided in clauses one
and two of paragraph (a) of this subdivision,
(3) taxes on or measured by profits or income paid or accrued to the
United States, any of its possessions or to any foreign country, includ-
ing taxes in lieu of any of the foregoing taxes otherwise generally
imposed by any foreign country or by any possession of the United
States, or taxes on or measured by profited or income paid or accrued to
the state or any subdivision thereof, including taxes paid or accrued
under article nine, nine-A, thirteen-A, twenty-four-A, or twenty-four-B
of the tax law or under article thirty-two of the tax law as such arti-
cle was in effect on December thirty-first, two thousand fourteen,
(3-a) taxes on or measured by profits or income, or which include
profits or income as a measure, paid or accrued to any other state of
the United States, or any political subdivision thereof, or to the
District of Columbia, including taxes expressly in lieu of any of the
foregoing taxes otherwise generally imposed by any other state of the
United States, or any political subdivision thereof, or the District of
Columbia;
(4) taxes imposed under this chapter,
A. 10030 439
(4-a) (A) the entire amount allowable as an exclusion or deduction for
stock transfer taxes imposed by article twelve of the tax law in deter-
mining the entire taxable income which the taxpayer is required to
report to the United States treasury department but only to the extent
that such taxes are incurred and paid in market making transactions, and
(B) the amount allowed as an exclusion or deduction for sales and use
taxes imposed by section eleven hundred seven of the tax law in deter-
mining the entire taxable income which the taxpayer is required to
report to the United States treasury department but only such portion of
such exclusion or deduction which is not in excess of the amount of the
credit allowed pursuant to subdivision twelve of section 11-604 of this
subchapter,
(4-b) the amount allowed as an exclusion or a deduction imposed by the
tax law in determining the entire taxable income which the taxpayer is
required to report to the United States treasury department but only
such portion of such exclusion or deduction which is not in excess of
the amount of the credit allowed pursuant to subdivision thirteen of
section 11-604 of this subchapter,
(4-c) the amount allowed as an exclusion or a deduction imposed by the
tax law in determining the entire taxable income which the taxpayer is
required to report to the United States treasury department but only
such portion of such exclusion or deduction which is not in excess of
the amount of the credit allowed pursuant to subdivision fourteen of
section 11-604 of this subchapter,
(4-d) the amount allowed as an exclusion or deduction for sales and
use taxes imposed by section eleven hundred seven of the tax law in
determining the entire taxable income which the taxpayer is required to
report to the United States Treasury Department, but only such portion
of such exclusion or deduction which is not in excess of the amount of
the credit allowed pursuant to subdivision fifteen of section 11-604 of
this chapter,
(4-g) The amount allowed as an exclusion or deduction for sales and
use taxes imposed by section eleven hundred seven of the tax law, or for
any interest imposed in connection therewith, in determining the entire
taxable income which the taxpayer is required to report to the United
States treasury department but only such portion of such exclusion or
deduction which is not in excess of the amount of the credit allowed
pursuant to subdivision seventeen-a of section 11-604 of this subchap-
ter.
(6) in the discretion of the commissioner of finance, any amount of
interest directly or indirectly and any other amount directly or indi-
rectly attributable as a carrying charge or otherwise to subsidiary
capital or to income, gains or losses from subsidiary capital,
(7) any amount by reason of the granting, issuing or assuming of a
restricted stock option, as defined in the internal revenue code of
nineteen hundred fifty-four, or by reason of the transfer of the share
of stock upon the exercise of the option, unless such share is disposed
of by the grantee of the option within two years from the date of the
granting of the option or within six months after the transfer of such
share to the grantee,
(8) in the case of a taxpayer who is separately or as a partner of a
partnership doing an insurance business as a member of the New York
insurance exchange described in section six thousand two hundred one of
the insurance law, such taxpayer's distributive or pro rata share of the
allocated entire net income of such business as determined under
sections fifteen hundred three and fifteen hundred four of the tax law,
A. 10030 440
provided however, in the event such allocated entire net income is a
loss, such taxpayer's distributive or pro rata share of such loss shall
not be subtracted from federal taxable income in computing entire net
income under this subdivision,
(9) for taxable years beginning after December thirty-first, nineteen
hundred eighty-one, except with respect to property which is a qualified
mass commuting vehicle described in subparagraph (D) of paragraph eight
of subsection (f) of section one hundred sixty-eight of the internal
revenue code, relating to qualified mass commuting vehicles, and proper-
ty of a taxpayer principally engaged in the conduct of an aviation,
steamboat, ferry or navigation business, or two or more of such busi-
nesses, which is placed in service before taxable years beginning in
nineteen hundred eighty-nine, any amount which the taxpayer claimed as a
deduction in computing its federal taxable income solely as a result of
an election made pursuant to the provisions of such paragraph eight as
it was in effect for agreements entered into prior to January first,
nineteen hundred eighty-four,
(10) for taxable years beginning after December thirty-first, nineteen
hundred eighty-one, except with respect to property which is a qualified
mass commuting vehicle described in subparagraph (D) of paragraph eight
of subsection (f) of section one hundred sixty-eight of the internal
revenue code, relating to qualified mass commuting vehicles, and proper-
ty of a taxpayer principally engaged in the conduct of an aviation,
steamboat, ferry or navigation business, or two or more of such busi-
nesses, which is placed in service before taxable years beginning in
nineteen hundred eighty-nine, any amount which the taxpayer would have
been required to include in the computation of its federal taxable
income had it not made the election permitted pursuant to such paragraph
eight as it was in effect for agreements entered into prior to January
first, nineteen hundred eighty-four,
(11) in the case of property placed in service in taxable years begin-
ning before nineteen hundred ninety-four, for taxable years beginning
after December thirty-first, nineteen hundred eighty-one, except with
respect to property subject to the provisions of section two hundred
eighty-F of the internal revenue code, property subject to the
provisions of section one hundred sixty-eight of the internal revenue
code which is placed in service in this state in taxable years beginning
after December thirty-first, nineteen hundred eighty-four and property
of a taxpayer principally engaged in the conduct of an aviation, steam-
boat, ferry or navigation business, or two or more of such businesses,
which is placed in service before taxable years beginning in nineteen
hundred eighty-nine, the amount allowable as a deduction determined
under section one hundred sixty-eight of the internal revenue code,
(12) upon the disposition of property to which paragraph (j) of this
subdivision applies, the amount, if any, by which the aggregate of the
amounts described in such paragraph (j) attributable to such property
exceeds the aggregate of the amounts described in subparagraph eleven of
this paragraph attributable to such property,
(13) for taxable years ending after September tenth, two thousand one,
in the case of qualified property described in paragraph two of
subsection k of section one hundred sixty-eight of the internal revenue
code, other than qualified resurgence zone property described in para-
graph (m) of this subdivision, and other than qualified New York Liberty
Zone property described in paragraph two of subsection b of section
fourteen hundred L of the internal revenue code, without regard to
clause (i) of subparagraph (C) of such paragraph, the amount allowable
A. 10030 441
as a deduction under section one hundred sixty-seven of the internal
revenue code,
(14) for taxable years beginning on or after January first, two thou-
sand four, in the case of a taxpayer that is not an eligible farmer as
defined in subsection (n) of section six hundred six of the tax law, the
amount allowable as a deduction under sections one hundred seventy-nine,
one hundred sixty-seven and one hundred sixty-eight of the internal
revenue code with respect to a sport utility vehicle that is not a
passenger automobile as defined in paragraph five of subsection (d) of
section two hundred eighty F of the internal revenue code,
(15) the amount of any deduction allowed pursuant to section one
hundred ninety-nine of the internal revenue code,
(16) the amount of any federal deduction for taxes imposed under arti-
cle twenty-three of the tax law,
(17) the amount of any federal deduction that would have been allowed
pursuant to subparagraph (A) of paragraph one of subdivision (a) of
section two hundred fifty of the internal revenue code if the taxpayer
had not made an election under subchapter s of chapter one of the inter-
nal revenue code,
(18) for taxable years beginning in two thousand nineteen and two
thousand twenty, the amount of the increase in the federal interest
deduction allowed pursuant to paragraph ten of subdivision (j) of
section one hundred sixty-three of the internal revenue code, and
(19) the amount of any gain excluded from federal gross income for the
taxable year by subparagraph (A) of paragraph (1) of subsection (a) of
section one thousand four hundred Z-two of the internal revenue code.
(c) Entire net income shall include income within and without the
United States;
(c-1)(1) Notwithstanding any other provision of this subchapter, in
the case of a taxpayer which is a foreign air carrier holding a foreign
air carrier permit issued by the United States department of transporta-
tion pursuant to section four hundred two of the federal aviation act of
nineteen hundred fifty-eight, as amended, and which is qualified under
subparagraph two of this paragraph, entire net income shall not include,
and shall be computed without the deduction of, amounts directly or
indirectly attributable to, (i) any income derived from the interna-
tional operation of aircraft as described in and subject to the
provisions of section eight hundred eighty-three of the internal revenue
code, (ii) income without the United States which is derived from the
operation of aircraft, and (iii) income without the United States which
is of a type described in subdivision (a) of section eight hundred
eighty-one of the internal revenue code except that it is derived from
sources without the United States. Entire net income shall include
income described in clauses (i), (ii) and (iii) of this subparagraph in
the case of taxpayers not described in this subparagraph.
(2) A taxpayer is qualified under this subparagraph if air carriers
organized in the United States and operating in the foreign country or
countries in which the taxpayer has its major base of operations and in
which it is organized, resident or headquartered, if not in the same
country as its major base of operations, are not subject to any income
tax or other tax based on or measured by income or receipts imposed by
such foreign country or countries or any political subdivision thereof,
or if so subject to such tax, are provided an exemption from such tax
equivalent to that provided for in this paragraph.
(d) The commissioner of finance may, whenever necessary in order prop-
erly to reflect the entire net income of any taxpayer, determine the
A. 10030 442
year or period in which any item of income or deduction shall be
included, without regard to the method of accounting employed by the
taxpayer;
(e) The entire net income of any bridge commission created by act of
congress to construct a bridge across an international boundary means
its gross income less the expense of maintaining and operating its prop-
erties, the annual interest upon its bonds and other obligations, and
the annual charge for the retirement of such bonds or obligations at
maturity;
(f) A net operating loss deduction shall be allowed which shall be the
same as the net operating loss deduction allowed under section one
hundred seventy-two of the internal revenue code or which would have
been allowed if the taxpayer had not made an election under subchapter s
of chapter one of the internal revenue code, except that in every
instance where such deduction is allowed under this subchapter:
(1) any net operating loss included in determining such deduction
shall be adjusted to reflect the inclusions and exclusions from entire
net income pursuant to paragraphs (a), (b), (g) and (h) of this subdivi-
sion,
(2) such deductions shall not include any net operating loss sustained
during any taxable year in which the taxpayer was not subject to the tax
imposed by this subchapter,
(3) such deduction shall not exceed the deduction for the taxable year
allowed under section one hundred seventy-two of the internal revenue
code, or the deduction for the taxable year which would have been
allowed if the taxpayer had not made an election under subchapter s of
chapter one of the internal revenue code,
(4) any net operating loss for a taxable year beginning in nineteen
hundred eighty-one shall be computed without regard to the deduction
allowed with respect to recovery property under section one hundred
sixty-eight of the internal revenue code; in lieu of such deduction, a
taxpayer shall be allowed for such taxable year with respect to such
property the depreciation deduction allowable under section one hundred
sixty-seven of such code as such section was in full force and effect on
December thirty-first, nineteen hundred eighty, and
(5) 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 as if the taxpayer had elected under such
section to relinquish the entire carryback period with respect to net
operating losses, except with respect to the first ten thousand dollars
of each of such losses, sustained during taxable years ending after June
thirtieth, nineteen hundred eighty-nine.
(6) Notwithstanding any other provision of this subchapter to the
contrary, for taxable years beginning before January first, two thousand
twenty-one, any amendment to section one hundred seventy-two of the
internal revenue code made after March first, two thousand twenty shall
not apply to this subchapter.
(g) At the election of the taxpayer, a deduction shall be allowed for
expenditures paid or incurred during the taxable year for the
construction, reconstruction, erection or improvement of industrial
waste treatment facilities and air pollution control facilities.
(1)(A) The term "industrial waste treatment facilities" shall mean
facilities for the treatment, neutralization or stabilization of indus-
trial waste, as the term "industrial waste" is defined in section
17-0105 of the environmental conservation law, from a point immediately
preceding the point of such treatment, neutralization or stabilization
A. 10030 443
to the point of disposal, including the necessary pumping and transmit-
ting facilities, but excluding such facilities installed for the primary
purpose of salvaging materials which are usable in the manufacturing
process or are marketable.
(B) The term "air pollution control facilities" shall mean facilities
which remove, reduce, or render less noxious air contaminants emitted
from an air contamination source, as the terms "air contaminant" and
"air contamination source" are defined in section 19-0107 of the envi-
ronmental conservation law, from a point immediately preceding the point
of such removal, reduction or rendering to the point of discharge of
air, meeting emission standards as established by the air pollution
control board, but excluding such facilities installed for the primary
purpose of salvaging materials which are usable in the manufacturing
process or are marketable and excluding those facilities which rely for
their efficacy on dilution, dispersion or assimilation of air contam-
inants in the ambient air after emission.
(2) However, such deduction shall be allowed only (A) with respect to
tangible property which is depreciable, pursuant to section one hundred
sixty-seven of the internal revenue code, having a situs in the city and
used in the taxpayer's trade or business, the construction, recon-
struction, erection or improvement of which, in the case of industrial
waste treatment facilities, is initiated on or after January first,
nineteen hundred sixty-six, and only for expenditures paid or incurred
prior to January first, nineteen hundred seventy-two, or which, in the
case of air pollution control facilities, is initiated on or after Janu-
ary first, nineteen hundred sixty-six, and
(B) on condition that such facilities have been certified by the state
commissioner of environmental conservation or the state commissioner's
designated representative, in the same manner as provided for in section
17-0707 or 19-0309 of the environmental conservation law, as applicable,
as complying with applicable provisions of the environmental conserva-
tion law, the state sanitary code and regulations, permits or orders
issued pursuant thereto, and
(C) on condition that entire net income for the taxable year and all
succeeding taxable years be computed without any deductions for such
expenditures or for depreciation of the same property other than the
deductions allowed by this paragraph except to the extent that the basis
of the property may be attributable to factors other than such expendi-
tures, or in case a deduction is allowable pursuant to this paragraph
for only a part of such expenditures, on condition that any deduction
allowed for federal income tax purposes for such expenditures or for
depreciation of the same property be proportionately reduced in comput-
ing entire net income for the taxable year and all succeeding taxable
years, and
(D) where the election provided for in paragraph (d) of subdivision
three of section 11-604 of this subchapter has not been exercised in
respect to the same property.
(3)(A) If expenditures in respect to an industrial waste treatment
facility or an air pollution control facility have been deducted as
provided herein and if within ten years from the end of the taxable year
in which such deduction was allowed such property or any part thereof is
used for the primary purpose of salvaging materials which are usable in
the manufacturing process or are marketable, the taxpayer shall report
such change of use in its report for the first taxable year during which
it occurs, and the commissioner of finance may recompute the tax for the
year or years for which such deduction was allowed and any carryback or
A. 10030 444
carryover year, and may assess any additional tax resulting from such
recomputation within the time fixed by paragraph (h) of subdivision
three of section 11-674 of this chapter.
(B) If a deduction is allowed as herein provided for expenditures paid
or incurred during any taxable year on the basis of a temporary certif-
icate of compliance issued pursuant to the environmental conservation
law and if the taxpayer fails to obtain a permanent certificate of
compliance upon completion of the facilities with respect to which such
temporary certificate was issued, the taxpayer shall report such failure
in its report for the taxable year during which such facilities are
completed, and the commissioner of finance may recompute the tax for the
year or years for which such deduction was allowed and any carryback or
carryover year, and may assess any additional tax resulting from such
recomputation within the time fixed by paragraph (h) of subdivision
three of section 11-674 of this chapter.
(4) In any taxable year when property is sold or otherwise disposed
of, with respect to which a deduction has been allowed pursuant to this
paragraph, such deduction shall be disregarded in computing gain or
loss, and the gain or loss on the sale or other disposition of such
property shall be the gain or loss entering into the computation of
entire taxable income which the taxpayer is required to report to the
United States treasury for such taxable year;
(h) With respect to gain derived from the sale or other disposition of
any property acquired prior to January first, nineteen hundred sixty-
six; which had a federal adjusted basis on such date, or on the date of
its sale or other disposition prior to January first, nineteen hundred
sixty-six, lower than its fair market value on January first, nineteen
hundred sixty-six or the date of its sale or other disposition prior
thereto, except property described in subsections one and four of
section twelve hundred twenty-one of the internal revenue code, there
shall be deducted from entire net income, the difference between (1) the
amount of the taxpayer's federal taxable income, and (2) the amount of
the taxpayer's federal taxable income, if smaller than the amount
described in subparagraph one of this paragraph computed as if the
federal adjusted basis of each such property on the sale or other dispo-
sition of which gain was derived, on the date of the sale or other
disposition had been equal to either (A) its fair market value on Janu-
ary first, nineteen hundred sixty-six or the date of its sale or other
disposition prior to January first, nineteen hundred sixty-six, plus or
minus all adjustments to basis made with respect to such property for
federal income tax purposes for periods on and after January first,
nineteen hundred sixty-six or (B) the amount realized from its sale or
disposition, whichever is lower; provided, however, that the total
modification provided by this paragraph shall not exceed the amount of
the taxpayer's net gain from the sale or other disposition of all such
property.
(i) If the period covered by a report under this subchapter is other
than the period covered by the report of the United States treasury
department, entire net income shall be determined by multiplying the
federal taxable income, as adjusted pursuant to the provisions of this
subchapter, by the number of calendar months or major parts thereof
covered by the report under this subchapter and dividing by the number
of calendar months or major parts thereof covered by the report to such
department.
If it shall appear that such method of determining entire net income
does not properly reflect the taxpayer's income during the period
A. 10030 445
covered by the report under this subchapter, the commissioner of finance
shall be authorized in his or her discretion to determine such entire
net income solely on the basis of the taxpayer's income during the peri-
od covered by its report under this subchapter.
(j) In the case of property placed in service in taxable years begin-
ning before nineteen hundred ninety-four, for taxable years beginning
after December thirty-first, nineteen hundred eighty-one, except with
respect to property subject to the provisions of section two hundred
eighty-F of the internal revenue code and property subject to the
provisions of section one hundred sixty-eight of the internal revenue
code which is placed in service in this state in taxable years beginning
after December thirty-first, nineteen hundred eighty-four, and provided
a deduction has not been excluded from entire net income pursuant to
subparagraph nine of paragraph (b) of this subdivision, a taxpayer shall
be allowed with respect to property which is subject to the provisions
of section one hundred sixty-eight of the internal revenue code the
depreciation deduction allowable under section one hundred sixty-seven
of the internal revenue code as such section would have applied to prop-
erty placed in service on December thirty-first, nineteen hundred
eighty. This paragraph shall not apply to property of a taxpayer princi-
pally engaged in the conduct of an aviation, steamboat, ferry or naviga-
tion business, or two or more of such businesses, which is placed in
service before taxable years beginning in nineteen hundred eighty-nine.
(k) for taxable years ending after September tenth, two thousand one,
in the case of qualified property described in paragraph two of
subsection k of section one hundred sixty-eight of the internal revenue
code, other than qualified resurgence zone property described in para-
graph (m) of this subdivision, and other than qualified New York Liberty
Zone property described in paragraph two of subsection b of section
fourteen hundred L of the internal revenue code, without regard to
clause (i) of subparagraph (C) of such paragraph, the depreciation
deduction allowable under section one hundred sixty-seven as such
section would have applied to such property had it been acquired by the
taxpayer on September tenth, two thousand one, provided, however, that
for taxable years beginning on or after January first, two thousand
four, in the case of a passenger motor vehicle or a sport utility vehi-
cle subject to the provisions of paragraph (o) of this subdivision, the
limitation under clause (i) of subparagraph (A) of paragraph one of
subdivision (a) of section two hundred eighty-F of the internal revenue
code applicable to the amount allowed as a deduction under this para-
graph shall be determined as of the date such vehicle was placed in
service and not as of September tenth, two thousand one.
(l) for taxable years ending after September tenth, two thousand one,
upon the disposition of property to which paragraph (k) of this subdivi-
sion applies, the amount of any gain or loss includible in entire net
income shall be adjusted to reflect the inclusions and exclusions from
entire net income pursuant to subparagraph twelve of paragraph (a) and
subparagraph thirteen of paragraph (b) of this subdivision attributable
to such property.
(m) for purposes of this paragraph and paragraph (l) of this subdivi-
sion, qualified resurgence zone property shall mean qualified property
described in paragraph two of subsection k of section one hundred
sixty-eight of the internal revenue code substantially all of the use of
which is in the resurgence zone, as defined in this paragraph, and is in
the active conduct of a trade or business by the taxpayer in such zone,
and the original use of which in the resurgence zone commences with the
A. 10030 446
taxpayer after September tenth, two thousand one. The resurgence zone
shall mean the area of New York county bounded on the south by a line
running from the intersection of the Hudson River with the Holland
Tunnel, and running thence east to Canal Street, then running along the
centerline of Canal Street to the intersection of the Bowery and Canal
Street, running thence in a southeasterly direction diagonally across
Manhattan Bridge Plaza, to the Manhattan Bridge, and thence along the
centerline of the Manhattan Bridge to the point where the centerline of
the Manhattan Bridge would intersect with the easterly bank of the East
River, and bounded on the north by a line running from the intersection
of the Hudson River with the Holland Tunnel and running thence north
along West Avenue to the intersection of Clarkson Street then running
east along the centerline of Clarkson Street to the intersection of
Washington Avenue, then running south along the centerline of Washington
Avenue to the intersection of West Houston Street, then east along the
centerline of West Houston Street, then at the intersection of the
Avenue of the Americas continuing east along the centerline of East
Houston Street to the easterly bank of the East River.
(n) Related members expense add back.
(1) Definitions. (A) Related member. "Related member" means a related
person as defined in subparagraph (c) of paragraph three of subsection
(b) of section four hundred sixty-five of the internal revenue code,
except that "fifty percent" shall be substituted for "ten percent".
(B) Effective rate of tax. "Effective rate of tax" means, as to any
city, the maximum statutory rate of tax imposed by the city on or meas-
ured by a related member's net income multiplied by the apportionment
percentage, if any, applicable to the related member under the laws of
said jurisdiction. For purposes of this definition, the effective rate
of tax as to any city is zero where the related member's net income tax
liability in said city is reported on a combined or consolidated return
including both the taxpayer and the related member where the reported
transactions between the taxpayer and the related member are eliminated
or offset. Also, for purposes of this definition, when computing the
effective rate of tax for a city in which a related member's net income
is eliminated or offset by a credit or similar adjustment that is
dependent upon the related member either maintaining or managing intan-
gible property or collecting interest income in that city, the maximum
statutory rate of tax imposed by said city shall be decreased to reflect
the statutory rate of tax that applies to the related member as effec-
tively reduced by such credit or similar adjustment.
(C) Royalty payments. Royalty payments are payments directly connected
to the acquisition, use, maintenance or management, ownership, sale,
exchange, or any other disposition of licenses, trademarks, copyrights,
trade names, trade dress, service marks, mask works, trade secrets,
patents and any other similar types of intangible assets as determined
by the commissioner of finance, and include amounts allowable as inter-
est deductions under section one hundred sixty-three of the internal
revenue code to the extent such amounts are directly or indirectly for,
related to or in connection with the acquisition, use, maintenance or
management, ownership, sale, exchange or disposition of such intangible
assets.
(D) Valid business purpose. A valid business purpose is one or more
business purposes, other than the avoidance or reduction of taxation,
which alone or in combination constitute the primary motivation for some
business activity or transaction, which activity or transaction changes
in a meaningful way, apart from tax effects, the economic position of
A. 10030 447
the taxpayer. The economic position of the taxpayer includes an increase
in the market share of the taxpayer, or the entry by the taxpayer into
new business markets.
(2) Royalty expense add backs. (A) For the purpose of computing entire
net income or other applicable taxable basis, a taxpayer must add back
royalty payments directly or indirectly paid, accrued, or incurred in
connection with one or more direct or indirect transactions with one or
more related members during the taxable year to the extent deductible in
calculating federal taxable income.
(B) (i) The adjustment required in this paragraph shall not apply to
the portion of the royalty payment that the taxpayer establishes, by
clear and convincing evidence of the type and in the form specified by
the commissioner of finance, meets all of the following requirements:
(I) the related member was subject to tax in this city or another city
within the United States or a foreign nation or some combination thereof
on a tax base that included the royalty payment paid, accrued or
incurred by the taxpayer; (II) the related member during the same taxa-
ble year directly or indirectly paid, accrued or incurred such portion
to a person that is not a related member; and (III) the transaction
giving rise to the royalty payment between the taxpayer and the related
member was undertaken for a valid business purpose.
(ii) The adjustment required in this paragraph shall not apply if the
taxpayer establishes, by clear and convincing evidence of the type and
in the form specified by the commissioner of finance, that: (I) the
related member was subject to tax on or measured by its net income in
this city or another city within the United States, or some combination
thereof; (II) the tax base for said tax included the royalty payment
paid, accrued or incurred by the taxpayer; and (III) the aggregate
effective rate of tax applied to the related member in those jurisdic-
tions is no less than eighty percent of the statutory rate of tax that
applied to the taxpayer under section 11-604 of this subchapter for the
taxable year.
(iii) The adjustment required in this paragraph shall not apply if the
taxpayer establishes, by clear and convincing evidence of the type and
in the form specified by the commissioner of finance, that: (I) the
royalty payment was paid, accrued or incurred to a related member organ-
ized under the laws of a country other than the United States; (II) the
related member's income from the transaction was subject to a comprehen-
sive income tax treaty between such country and the United States; (III)
the related member was subject to tax in a foreign nation on a tax base
that included the royalty payment paid, accrued or incurred by the
taxpayer; (IV) the related member's income from the transaction was
taxed in such country at an effective rate of tax at least equal to that
imposed by this city; and (V) the royalty payment was paid, accrued or
incurred pursuant to a transaction that was undertaken for a valid busi-
ness purpose and using terms that reflect an arm's length relationship.
(iv) The adjustment required in this paragraph shall not apply if the
taxpayer and the commissioner of finance agree in writing to the appli-
cation or use of alternative adjustments or computations. The commis-
sioner of finance may, in his or her discretion, agree to the applica-
tion or use of alternative adjustments or computations when he or she
concludes that in the absence of such agreement the income of the
taxpayer would not be properly reflected.
(o) For taxable years beginning on or after January first, two thou-
sand four, in the case of a taxpayer that is not an eligible farmer as
defined in subsection (n) of section six hundred six of the tax law, the
A. 10030 448
deductions allowable under sections one hundred seventy-nine, one
hundred sixty-seven and one hundred sixty-eight of the internal revenue
code with respect to a sport utility vehicle that is not a passenger
automobile as defined in paragraph five of subsection (d) of section two
hundred eighty-F of the internal revenue code, determined as if such
sport utility vehicle were a passenger automobile as defined in such
paragraph five. For purposes of paragraph (k) and subparagraph thirteen
of paragraph (b) of this subdivision, the terms qualified resurgence
zone property and qualified New York Liberty Zone property described in
paragraph two of subsection b of section fourteen hundred-L of the
internal revenue code shall not include any sport utility vehicle that
is not a passenger automobile as defined in paragraph five of subsection
(d) of section two hundred eighty-F of the internal revenue code.
(p) Upon the disposition of property to which paragraph (o) of this
subdivision applies, the amount of any gain or loss includible in entire
net income shall be adjusted to reflect the inclusions and exclusions
from entire net income pursuant to subparagraph thirteen of paragraph
(a) and subparagraph fourteen of paragraph (b) of this subdivision
attributable to such property.
9. (a) The term "calendar year" means a period of twelve calendar
months, or any shorter period beginning on the date the taxpayer becomes
subject to the tax imposed by this subchapter, ending on the thirty-
first day of December, provided the taxpayer keeps its books on the
basis of such period or on the basis of any period ending on any day
other than the last day of a calendar month, or provided the taxpayer
does not keep books, and includes, in case the taxpayer changes the
period on the basis of which it keeps its books from a fiscal year to a
calendar year, the period from the close of its last old fiscal year up
to and including the following December thirty-first.
(b) The term "fiscal year" means a period of twelve calendar months,
or any shorter period beginning on the date the taxpayer becomes subject
to the tax imposed by this subchapter, ending on the last day of any
month other than December, provided the taxpayer keeps its books on the
basis of such period, and includes, in case the taxpayer changes the
period on the basis of which it keeps its books from a calendar year to
a fiscal year or from one fiscal year to another fiscal year, the period
from the close of its last old calendar or fiscal year up to the date
designated as the close of its new fiscal year.
10. The term "tangible personal property" means corporeal personal
property, such as machinery, tools, implements, goods, wares and
merchandise, and does not mean money, deposits in banks, shares of
stock, bonds, notes, credits or evidence of an interest property and
evidences of debt.
§ 11-603 Imposition of tax; exemptions. 1. For the privilege of doing
business, or of employing capital, or of owning or leasing property in
the city in a corporate or organized capacity, or of maintaining an
office in the city, for all or any part of each of its fiscal or calen-
dar years, every domestic or foreign corporation, except corporations
specified in subdivision four of this section, shall annually pay a tax,
upon the basis of its entire net income, or upon such other basis as may
be applicable as provided by this section, for such fiscal or calendar
year or part thereof, on a report which shall be filed, except as
provided by this section, on or before the fifteenth day of March next
succeeding the close of each such year, or, in the case of a taxpayer
which reports on the basis of a fiscal year, within two and one-half
A. 10030 449
months after the close of such fiscal year, and shall be paid as
provided by this section.
2. A corporation shall not be deemed to be doing business, employing
capital, owning or leasing property, or maintaining an office in the
city, for the purposes of this subchapter, by reason of (a) the mainte-
nance of cash balances with banks or trust companies in the city, or (b)
the ownership of shares of stock or securities kept in the city, if kept
in a safe deposit box, safe, vault or other receptacle rented for the
purpose, or if pledged as collateral security, or if deposited with one
or more banks or trust companies, or brokers who are members of a recog-
nized security exchange, in safekeeping or custody accounts, or (c) the
taking of any action by any such bank or trust company or broker, which
is incidental to the rendering of safekeeping or custodian service to
such corporation, or (d) the maintenance of an office in the city by one
or more officers or directors of the corporation who are not employees
of the corporation if the corporation otherwise is not doing business in
the city, and does not employ capital or own or lease property in the
city, or (e) the keeping of books or records of a corporation in the
city if such books or records are not kept by employees of such corpo-
ration and such corporation does not otherwise do business, employ capi-
tal, own or lease property or maintain an office in the city, or (f) any
combination of the activities described in this subdivision.
2-a. An alien corporation shall not be deemed to be doing business,
employing capital, owning or leasing property, or maintaining an office
in the city, for the purposes of this subchapter, if its activities in
the city are limited solely to (a) investing or trading in stocks and
securities for its own account within the meaning of clause (ii) of
subparagraph (A) of paragraph (2) of subsection (b) of section eight
hundred sixty-four of the internal revenue code or (b) investing or
trading in commodities for its own account within the meaning of clause
(ii) of subparagraph (B) of paragraph (2) of subsection (b) of section
eight hundred sixty-four of the internal revenue code or (c) any combi-
nation of activities described in paragraphs (a) and (b) of this subdi-
vision. For purposes of this subdivision, an alien corporation is a
corporation organized under the laws of a country, or any political
subdivision thereof, other than the United States.
3. Any receiver, referee, trustee, assignee or other fiduciary, or
any officer or agent appointed by any court, who conducts the business
of any corporation, shall be subject to the tax imposed by this subchap-
ter in the same manner and to the same extent as if the business were
conducted by the agents or officers of such corporation. A dissolved
corporation which continues to conduct business shall also be subject to
the tax imposed by this subchapter.
4. (a) Corporations subject to tax under subchapter three of this
chapter or under chapter eleven of this title, any trust company organ-
ized under a law of this state all of the stock of which is owned by not
less than twenty savings banks organized under a law of this state, bank
holding companies filing a combined return in accordance with subdivi-
sion (f) of section 11-646 of this chapter, a captive REIT or a captive
RIC filing a combined return under subdivision (f) of section 11-646 of
this chapter, housing companies organized and operating pursuant to the
provisions of article two of the private housing finance law, housing
development fund companies organized pursuant to the provisions of arti-
cle eleven of the private housing finance law, corporations described in
section three of the tax law, a corporation principally engaged in the
operation of marine vessels whose activities in the city are limited
A. 10030 450
exclusively to the use of property in interstate or foreign commerce,
provided, however, such a corporation will not be subject to tax under
this subchapter solely because it maintains an office in the city, or
employs capital in the city, in connection with such use of property, a
corporation principally engaged in the conduct of a ferry business and
operating between any of the boroughs of the city under a lease granted
by the city and a corporation principally engaged in the conduct of an
aviation, steamboat, ferry or navigation business, or two or more of
such businesses, all of the capital stock of which is owned by a munici-
pal corporation of this state, shall not be subject to tax under this
subchapter; provided, however, that any corporation, other than (1) a
utility corporation subject to the supervision of the state department
of public service, and (2) for taxable years beginning on or after
August first, two thousand two, a utility as defined in subdivision six
of section 11-1101 of this title, which is subject to tax under chapter
eleven of this title as a vendor of utility services shall be subject to
tax under this subchapter, but in computing the tax imposed by this
section pursuant to the provisions of clause one of subparagraph (a) of
paragraph A of subdivision one of section 11-604 of this subchapter,
business income allocated to the city pursuant to paragraph (a) of
subdivision three of such section shall be reduced by the percentage
which such corporation's gross operating income subject to tax under
chapter eleven of this title is of its gross operating income.
(b) The term "gross operating income", when used in paragraph (a) of
this subdivision, means receipts received in or by reason of any trans-
action had and consummated in the city, including cash, credits and
property of any kind or nature, whether or not such transaction is made
for profit, without any deduction therefrom on account of the cost of
the property sold, the cost of materials used, labor or other services,
delivery costs or any other costs whatsoever, interest or discount paid
or any other expenses whatsoever.
(c) If it shall appear to the commissioner of finance that the appli-
cation of the proviso of paragraph (a) of this subdivision, does not
fairly and equitably reflect the portion of the taxpayer's business
income allocable to the city which is attributable to its city activ-
ities which are not taxable under chapter eleven of this title, the
commissioner may prescribe other means or methods of determining such
portion, including the use of the books and records of the taxpayer, if
the commissioner finds that such means or methods used in keeping them
fairly and equitably reflect such portion.
5. The tax imposed by subdivision one of this section, with the
modifications provided by subdivision six of this section, is imposed
for each calendar or fiscal year beginning with calendar or fiscal years
ending in or with the calendar year nineteen hundred sixty-six.
6. (a) The tax for any taxable year ending prior to December thirty-
first, nineteen hundred sixty-six shall be an amount equal to the tax
imposed by subdivision one of this section for such taxable year, multi-
plied by the number of months, or major portions thereof, in such taxa-
ble year which occur after December thirty-first, nineteen hundred
sixty-five and divided by the number of months, or major portions there-
of, in such taxable year.
(b) In lieu of the method of computation of tax prescribed in para-
graph (a) of this subdivision, if the taxpayer maintained adequate
records for the portion of any taxable year ending prior to December
thirty-first, nineteen hundred sixty-six, which portion falls within the
calendar year nineteen hundred sixty-six, it may elect to compute the
A. 10030 451
tax for such taxable year by determining entire net income on the basis
of the entire taxable income which it would have reported for federal
income tax purposes had it filed a federal income tax return for a taxa-
ble year beginning January first, nineteen hundred sixty-six and ending
with the close of its actual taxable year and such taxable year begin-
ning January first, nineteen hundred sixty-six, shall be deemed to be
the period covered by its report, except that in computing such tax any
portion of a capital loss which results from a capital loss carryover
and any net operating loss deduction, as modified pursuant to paragraph
(f) of subdivision eight of section 11-602 of this subchapter, shall be
reduced by the same part of such portion of such capital loss or of such
net operating loss deduction, as the case may be, as the number of
months, or major portions thereof, in the taxable year occurring before
January first, nineteen hundred sixty-six is of the number of months, or
major portions thereof, in such taxable year.
7. For any taxable year of a real estate investment trust as defined
in section eight hundred fifty-six of the internal revenue code in which
such trust is subject to federal income taxation under section eight
hundred fifty-seven of such code, such trust shall be subject to a tax
computed under either clause one of subparagraph (a) of paragraph A of
subdivision one of section 11-604 of this subchapter with respect to its
entire net income, or clause four of such subparagraph, whichever is
greater, and shall not be subject to any tax under subchapter three of
this chapter, except for a captive REIT required to file a combined
return under subdivision (f) of section 11-646 of this chapter. In the
case of such a real estate investment trust, including a captive REIT as
defined in section 11-601 of this chapter, the term "entire net income"
means "real estate investment trust taxable income" as defined in para-
graph two of subdivision (b) of section eight hundred fifty-seven, as
modified by section eight hundred fifty-eight, of the internal revenue
code plus the amount taxable under paragraph three of subdivision (b) of
section eight hundred fifty-seven of such code, subject to the modifica-
tion required by subdivision eight of section 11-602 of this subchapter,
other than the modification required by clause two of paragraph (a) and
by paragraph (f) thereof, including the modifications required by para-
graphs (d) and (e) of subdivision three of section 11-604 of this
subchapter.
8. For any taxable year beginning on or after January first, nineteen
hundred eighty-one of a regulated investment company, as defined in
section eight hundred fifty-one of the internal revenue code, in which
such company is subject to federal income taxation under section eight
hundred fifty-two of such code, such company shall be subject to a tax
computed under clause one or four of subparagraph (a) of paragraph E of
subdivision one of section 11-604 of this subchapter, whichever is
greater, and such company shall not be subject to any tax under subchap-
ter three of this chapter. The term "entire net income" used in subdivi-
sion one of this section means "investment company taxable income" as
defined in paragraph two of subdivision (b) of section eight hundred
fifty-two, as modified by section eight hundred fifty-five, of the
internal revenue code plus the amount taxable under paragraph three of
subdivision (b) of section eight hundred fifty-two of such code subject
to the modifications required by subdivision eight of section 11-602 of
this subchapter, other than the modification required by clause two of
paragraph (a) and by paragraph (f) of such subdivision, including the
modification required by paragraphs (d) and (e) of subdivision three of
section 11-604 of this subchapter.
A. 10030 452
9. For any taxable year beginning on or after January first, nineteen
hundred eighty-seven, an organization described in paragraph two or
twenty-five of subdivision (c) of section five hundred one of the inter-
nal revenue code of nineteen hundred eighty-six shall be exempt from all
taxes imposed by this chapter.
§ 11-604 Computation of tax. 1. A. For taxable years beginning on or
after January first, nineteen hundred seventy-one and ending on or
before December thirty-first, nineteen hundred seventy-four, and for
taxable years beginning on or after January first, nineteen hundred
seventy-six, the tax imposed by subdivision one of section 11-603 of
this subchapter shall be, in the case of each taxpayer: (a) a tax (1)
computed at the rate of six and seven-tenths per centum of its entire
net income, or the portion of such entire net income allocated within
the city as provided in this section, subject to any modification
required by paragraphs (d) and (e) of subdivision three of this section,
or (2) computed at one mill for each dollar of its total business and
investment capital, or the portion thereof allocated within the city, as
provided in this section, except that in the case of a cooperative hous-
ing corporation as defined in the internal revenue code, or in the case
of a housing company organized and operating pursuant to the provisions
of article four of the private housing finance law, the applicable rates
shall be one-quarter of one mill, or (3) computed at the rate of six and
seven-tenths per centum on thirty per centum of the taxpayer's entire
net income plus salaries and other compensation paid to the taxpayer's
elected or appointed officers and to every stockholder owning in excess
of five per centum of its issued capital stock minus fifteen thousand
dollars, except as provided in this section, and any net loss for the
reported year, or on the portion of any such sum allocated within the
city as provided in this section for the allocation of entire net
income, subject to any modification required by paragraphs (d) and (e)
of subdivision three of this section, or (4) twenty-five dollars, which-
ever is greatest, plus (b) a tax computed at the rate of one-half mill
for each dollar of the portion of its subsidiary capital allocated with-
in the city as provided in this section. In the case of a taxpayer
which is not subject to tax for an entire year, the exemption allowed in
clause three of subparagraph (a) of this paragraph shall be prorated
according to the period such taxpayer was subject to tax.
B. For taxable years beginning on or after January first, nineteen
hundred seventy-five and before January first nineteen hundred seventy-
seven, the tax imposed by subdivision one of section 11-603 of this
subchapter shall be, in the case of each taxpayer: (a) a tax (1)
computed at the rate of ten and five one-hundredths per centum of its
entire net income, or the portion of such entire net income allocated
within the city as provided in this paragraph, subject to any modifica-
tion required by paragraphs (d) and (e) of subdivision three of this
section, or (2) computed at one and one-half mills for each dollar of
its total business and investment capital, or the portion thereof allo-
cated within the city, as provided in this paragraph, except that in the
case of a cooperative housing corporation as defined in the internal
revenue code, or in the case of a housing company organized and operat-
ing pursuant to the provisions of article four of the private housing
finance law, the applicable rate shall be four-tenths of one mill, or
(3) computed at the rate of ten and five one-hundredths per centum on
thirty per centum of the taxpayer's entire net income plus salaries and
other compensation paid to the taxpayer's elected or appointed officers
and to every stockholder owning in excess of five per centum of its
A. 10030 453
issued capital stock minus fifteen thousand dollars, except as provided
in this paragraph, and any net loss for the reported year, or on the
portion of any such sum allocated within the city as provided in this
paragraph for the allocation of entire net income, subject to any
modification required by paragraphs (d) and (e) of subdivision three of
this section, or (4) one hundred twenty-five dollars, whichever is
greatest, plus (b) a tax computed at the rate of three-quarters of a
mill for each dollar of the portion of its subsidiary capital allocated
within the city as provided in this paragraph. In the case of a taxpay-
er which is not subject to tax for an entire year, the exemption allowed
in clause three of subparagraph (a) of this paragraph shall be prorated
according to the period such taxpayer was subject to tax.
C. For each taxable year beginning in nineteen hundred seventy-four
and ending in nineteen hundred seventy-five, two tentative taxes shall
be computed, the first as provided in paragraph A and the second as
provided in paragraph B of this subdivision, and the tax for each such
year shall be the sum of that proportion of each tentative tax which the
number of days in nineteen hundred seventy-four and the number of days
in nineteen hundred seventy-five, respectively, bears to the number of
days in the entire taxable year.
D. For taxable years beginning on or after January first, nineteen
hundred seventy-seven and before January first, nineteen hundred seven-
ty-eight, the tax imposed by subdivision one of section 11-603 of this
subchapter shall be, in the case of each taxpayer: (a) a tax (1)
computed at the rate of nine and one-half per centum of its entire net
income, or the portion of such entire net income allocated within the
city as provided in this paragraph, subject to any modification required
by paragraphs (d) and (e) of subdivision three of this section, or (2)
computed at one and one-half mills for each dollar of its total business
and investment capital, or the portion thereof allocated within the
city, as provided in this paragraph, except that in the case of a coop-
erative housing corporation as defined in the internal revenue code, the
applicable rate shall be four-tenths of one mill, or (3) computed at the
rate of nine and one-half per centum on thirty per centum of the taxpay-
er's entire net income plus salaries and other compensation paid to the
taxpayer's elected or appointed officers and to every stockholder owning
in excess of five per centum of its issued capital stock minus fifteen
thousand dollars, except as provided in this paragraph, and any net loss
for the reported year, or on the portion of any such sum allocated with-
in the city as provided in this paragraph for the allocation of entire
net income, subject to any modification required by paragraphs (d) and
(e) of subdivision three of this section, or (4) one hundred twenty-five
dollars, whichever is greatest, plus (b) a tax computed at the rate of
three-quarters of a mill for each dollar of the portion of its subsid-
iary capital allocated within the city as provided in this paragraph. In
the case of a taxpayer which is not subject to tax for an entire year,
the exemption allowed in clause three of subparagraph (a) of this para-
graph shall be prorated according to the period such taxpayer was
subject to tax.
E. For taxable years beginning on or after January first, nineteen
hundred seventy-eight but before January first, two thousand twenty-sev-
en, the tax imposed by subdivision one of section 11-603 of this
subchapter shall be, in the case of each taxpayer:
(a) whichever of the following amounts is the greatest:
(1) an amount computed, for taxable years beginning before nineteen
hundred eighty-seven, at the rate of nine per centum, and for taxable
A. 10030 454
years beginning after nineteen hundred eighty-six, at the rate of eight
and eighty-five one-hundredths per centum, of its entire net income or
the portion of such entire net income allocated within the city as
provided in this paragraph, subject to any modification required by
paragraphs (d) and (e) of subdivision three of this section,
(2) an amount computed at one and one-half mills for each dollar of
its total business and investment capital, or the portion thereof allo-
cated within the city, as provided in this paragraph, except that in the
case of a cooperative housing corporation as defined in the internal
revenue code, the applicable rate shall be four-tenths of one mill,
(3) an amount computed, for taxable years beginning before nineteen
hundred eighty-seven, at the rate of nine per centum, and for taxable
years beginning after nineteen hundred eighty-six, at the rate of eight
and eighty-five one-hundredths per centum, on thirty per centum of the
taxpayer's entire net income plus salaries and other compensation paid
to the taxpayer's elected or appointed officers and to every stockholder
owning in excess of five per centum of its issued capital stock minus
fifteen thousand dollars, subject to proration as provided in this para-
graph, and any net loss for the reported year, or on the portion of any
such sum allocated within the city as provided in this paragraph for the
allocation of entire net income, subject to any modification required by
paragraphs (d) and (e) of subdivision three of this section, provided,
however, that for taxable years beginning on or after July first, nine-
teen hundred ninety-six, the provisions of paragraph H of this subdivi-
sion shall apply for purposes of the computation under this clause, or
(4) for taxable years ending on or before June thirtieth, nineteen
hundred eighty-nine, one hundred twenty-five dollars, for taxable years
ending after June thirtieth, nineteen hundred eighty-nine and beginning
before two thousand nine, three hundred dollars, and for taxable years
beginning after two thousand eight:
If city Fixed dollar
receipts are: minimum tax is:
Not more than $100,000 $25
More than $100,000 but not over $250,000 $75
More than $250,000 but not over $500,000 $175
More than $500,000 but not over $1,000,000 $500
More than $1,000,000 but not over $5,000,000 $1,500
More than $5,000,000 but not over $25,000,000 $3,500
Over $25,000,000 $5,000
For purposes of this clause, city receipts are the receipts computed in
accordance with subparagraph two of paragraph (a) of subdivision three
of this section for the taxable year. For taxable years beginning after
two thousand eight, if the taxable year is less than twelve months,
the amount prescribed by this clause shall be reduced by twenty-five
percent if the period for which the taxpayer is subject to tax is more
than six months but not more than nine months and by fifty percent if
the period for which the taxpayer is subject to tax is not more than six
months. If the taxable year is less than twelve months, the amount of
city receipts for purposes of this clause is determined by divid-
ing the amount of the receipts for the taxable year by the number of
months in the taxable year and multiplying the result by twelve plus;
A. 10030 455
(b) an amount computed at the rate of three-quarters of a mill for
each dollar of the portion of its subsidiary capital allocated within
the city as provided in this paragraph.
In the case of a taxpayer which is not subject to tax for an entire
year, the exemption allowed in clause three of subparagraph (a) of this
paragraph shall be prorated according to the period such taxpayer was
subject to tax. Provided, however, that this paragraph shall not apply
to taxable years beginning after December thirty-first, two thousand
twenty-six. For the taxable years specified in this subparagraph, the
tax imposed by subdivision one of section 11-603 of this subchapter
shall be, in the case of each taxpayer, determined as specified in para-
graph A of this subdivision, provided, however, that the provisions of
paragraphs G and H of this subdivision shall apply for purposes of the
computation under clause three of subparagraph (a) of such paragraph.
F. Notwithstanding any other provision of this subdivision to the
contrary, for taxable years beginning after nineteen hundred eighty-sev-
en and before two thousand nine the amount of tax computed on the basis
of the taxpayer's total business and investment capital, or the portion
thereof allocated within the city, shall in no event exceed three
hundred fifty thousand dollars and for taxable years beginning after two
thousand eight the amount of tax computed on the basis of the taxpayer's
total business and investment capital, or the portion thereof allocated
within the city, shall in no event exceed one million dollars.
G. In the case of a foreign air carrier described in subparagraph one
of paragraph (c-1) of subdivision eight of section 11-602 of this
subchapter, there shall be excluded from the computation of the tax
under clause three of subparagraph (a) of paragraph E of this subdivi-
sion salaries and other compensation described therein which are direct-
ly attributable to the generation of income excluded from entire net
income for the taxable year pursuant to the provisions of paragraph
(c-1) of subdivision eight of section 11-602 of this subchapter.
H. For taxable years beginning on or after July first, nineteen
hundred ninety-six, the computation under clause three of subparagraph
(a) of paragraph E of this subdivision shall be subject to the following
modifications:
(a) (1) For taxable years beginning on or after July first, nineteen
hundred ninety-six but before July first, nineteen hundred ninety-eight,
only seventy-five percent of the total salaries and other compensation
paid to the taxpayer's elected or appointed officers shall be added to
the entire net income entering into such computation; for taxable years
beginning on or after July first, nineteen hundred ninety-eight but
before July first, nineteen hundred ninety-nine, only fifty percent of
such salaries and other compensation shall be added to such entire net
income; and for taxable years beginning on or after July first, nineteen
hundred ninety-nine, no part of such salaries and other compensation
shall be added to such entire net income.
(2) Notwithstanding anything in clause one of this subparagraph to the
contrary, the full amount of the salary or other compensation paid to
any such elected or appointed officer shall be added to entire net
income as provided in clause three of subparagraph (a) of paragraph E of
this subdivision if such officer was, at any time during the taxable
year, a stockholder owning more than five percent of taxpayer's issued
capital stock.
(b) For taxable years beginning on or after July first, nineteen
hundred ninety-seven but before July first, nineteen hundred ninety-
eight, the fixed dollar amount entering into the computation under
A. 10030 456
clause three of subparagraph (a) of paragraph E of this subdivision
shall be thirty thousand dollars instead of fifteen thousand dollars;
and for taxable years beginning on or after July first, nineteen hundred
ninety-eight, such fixed dollar amount shall be forty thousand dollars.
(c) For taxable years beginning on or after January first, two thou-
sand seven and before January first, two thousand eight the per centum
entering into the computation under clause three of subparagraph (a) of
paragraph E of this subdivision shall be twenty-six and one-fourth per
centum instead of thirty per centum, for taxable years beginning on or
after January first, two thousand eight and before January first, two
thousand nine such per centum shall be twenty-two and one-half per
centum, for taxable years beginning on or after January first, two thou-
sand nine and before January first, two thousand ten such per centum
shall be eighteen and three-fourths per centum and for taxable years
beginning on or after January first, two thousand ten such per centum
shall be fifteen per centum.
I. Notwithstanding any provision of this subdivision to the contrary,
for taxable years beginning on or after January first, two thousand
seven for any corporation that:
(a) has a business allocation percentage for the taxable year, as
determined under paragraph (a) of subdivision three of this section, of
one hundred percent;
(b) has no investment capital or income at any time during the taxable
year;
(c) has no subsidiary capital or income at any time during the taxable
year; and
(d) has gross income, as defined in section sixty-one of the internal
revenue code, less than two hundred fifty thousand dollars for the taxa-
ble year:
the tax imposed by subdivision one of section 11-603 of this subchap-
ter shall be the greater of the tax on entire net income computed under
clause one of subparagraph (a) of paragraph E of this subdivision and
the fixed dollar minimum tax specified in clause four of subparagraph
(a) of paragraph E of this subdivision.
For purposes of this paragraph, for taxable years beginning before
January first, two thousand fifteen, any corporation for which an
election under subsection (a) of section six hundred sixty of the tax
law is not in effect for the taxable year may elect to treat as entire
net income the sum of:
(i) entire net income as determined under section two hundred eight of
the tax law; and
(ii) any deductions taken for the taxable year in computing federal
taxable income for Staten Island city taxes paid or accrued under this
chapter.
2. The amount of subsidiary capital, investment capital and business
capital shall each be determined by taking the average value of the
gross assets included therein, less liabilities deductible therefrom
pursuant to the provisions of subdivisions three, four and six of
section 11-602 of this subchapter, and, if the period covered by the
report is other than a period of twelve calendar months, by multiplying
such value by the number of calendar months or major parts thereof
included in such period, and dividing the product thus obtained by
twelve. For purposes of this subdivision, real property and marketable
securities shall be valued at fair market value and the value of
personal property other than marketable securities shall be the value
A. 10030 457
thereof shown on the books and records of the taxpayer in accordance
with generally accepted accounting principles.
3. The portion of the entire net income of a taxpayer to be allocated
within the city shall be determined as follows:
(a) multiply its business income by a business allocation percentage
to be determined by:
(1) ascertaining the percentage which the average value of the taxpay-
er's real and tangible personal property, whether owned or rented to it,
within the city during the period covered by its report bears to the
average value of all the taxpayer's real and tangible personal property,
whether owned or rented to it, wherever situated during such period. For
the purpose of this subparagraph, the term "value of the taxpayer's real
and tangible personal property" shall mean the adjusted bases of such
properties for federal income tax purposes, except that in the case of
rented property such value shall mean the product of (A) eight and (B)
the gross rents payable for the rental of such property during the taxa-
ble year; provided, however, that the taxpayer may make a one-time,
revocable election, pursuant to regulations promulgated by the commis-
sioner of finance to use fair market value as the value of all of its
real and tangible personal property, provided that such election is made
on or before the due date for filing a report under section 11-605 of
this subchapter for the taxpayer's first taxable year commencing on or
after January first, nineteen hundred eighty-eight and provided that
such election shall not apply to any taxable year with respect to which
the taxpayer is included on a combined report unless each of the taxpay-
ers included on such report has made such an election which remains in
effect for such year;
(2) ascertaining the percentage which the receipts of the taxpayer,
computed on the cash or accrual basis according to the method of
accounting used in the computation of its entire net income, arising
during such period from:
(A) except as otherwise provided in subparagraph nine of this para-
graph, sales of its tangible personal property where shipments are made
to points within the city;
(B) services performed within the city, provided, however, that (i) in
the case of a taxpayer engaged in the business of publishing newspapers
or periodicals, receipts arising from sales of advertising contained in
such newspapers and periodicals shall be deemed to arise from services
performed within the city to the extent that such newspapers and period-
icals are delivered to points within the city, (ii) receipts received
from an investment company arising from the sale of management, adminis-
tration or distribution services to such investment company shall be
deemed to arise from services performed within the city to the extent
set forth in subparagraph five of this paragraph, (iii) in the case of
taxpayers principally engaged in the activity of air freight forwarding
acting as principal and like indirect air carriage, receipts arising
from such activity shall be deemed to arise from services performed
within the city as follows: one hundred percent of such receipts if both
the pickup and delivery associated with such receipts are made in the
city and fifty percent of such receipts if either the pickup or delivery
associated with such receipts is made in the city, (iv) for taxable
years beginning on or after January first, two thousand two, in the case
of a taxpayer engaged in the business of publishing newspapers or peri-
odicals, or broadcasting radio or television programs, whether through
the public airwaves or by cable, direct or indirect satellite trans-
mission, or any other means of transmission, receipts arising from sales
A. 10030 458
of subscriptions, advertising or broadcasting shall be deemed to arise
from services performed within the city to the extent provided in
subparagraph nine of this paragraph, and (v) for taxable years beginning
after two thousand eight, in the case of a taxpayer which is a regis-
tered securities or commodities broker or dealer, the receipts specified
in subparagraph ten of this paragraph shall be deemed to arise from
services performed within the city to the extent set forth in such
subparagraph ten;
(C) rentals from property situated and royalties from the use of
patents or copyrights, within the city;
(D) all other business receipts earned within the city, bear to the
total amount of the taxpayer's receipts, similarly computed, arising
during such period from all sales of its tangible personal property,
services, rentals, royalties and all other business transactions, wheth-
er within or without the city; and
(E) notwithstanding any other provision of this paragraph, net global
intangible low-taxed income shall be included in the receipts fraction
as provided in this clause. Receipts constituting net global intangible
low-taxed income shall not be included in the numerator of the receipts
fraction. Receipts constituting net global intangible low-taxed income
shall be included in the denominator of the receipts fraction. For
purposes of this clause, the term "net global intangible low-taxed
income" means the amount that would have been required to be included in
the taxpayer's federal gross income pursuant to subsection (a) of
section nine hundred fifty-one-A of the internal revenue code less the
amount of the deduction that would have been allowed under clause (i) of
subparagraph (B) of paragraph one of subdivision (a) of section two
hundred fifty of such code if the taxpayer had not made an election
under subchapter s of chapter one of the internal revenue code;
(3) ascertaining the percentage of the total wages, salaries and other
personal service compensation, similarly computed, during such period of
employees within the city, except general executive officers, to the
total wages, salaries and other personal service compensation, similarly
computed, during such period of all the taxpayer's employees within and
without the city, except general executive officers; and
(4) adding together the percentages so determined and dividing the
result by the number of percentages; provided, however, that for taxable
years beginning on or after July first, nineteen hundred ninety-six, a
taxpayer that is a "manufacturing corporation," as defined in subpara-
graph eight of this paragraph, may determine its business allocation
percentage as provided in such subparagraph eight; and provided,
further, however, that for taxable years beginning before July first,
nineteen hundred ninety-six, if the taxpayer does not have a regular
place of business outside the city other than a statutory office, the
business allocation percentage shall be one hundred per centum.
(5) Rules for receipts from certain services to investment companies.
(A) For purposes of subclause (ii) of clause (B) of subparagraph two of
this paragraph, the portion of receipts received from an investment
company arising from the sale of management, administration or distrib-
ution services to such investment company determined in accordance with
clause (B) of this subparagraph shall be deemed to arise from services
performed within the city, such portion referred to as the Staten Island
city portion.
(B) The Staten Island city portion shall be the product of (a) the
total of such receipts from the sale of such services and (b) a frac-
tion. The numerator of that fraction is the sum of the monthly percent-
A. 10030 459
ages, as defined, determined for each month of the investment company's
taxable year for federal income tax purposes which taxable year ends
within the taxable year of the taxpayer, but excluding any month during
which the investment company had no outstanding shares. The monthly
percentage for each such month is determined by dividing (a) the number
of shares in the investment company which are owned on the last day of
the month by shareholders which are domiciled in the city by (b) the
total number of shares in the investment company outstanding on that
date. The denominator of the fraction is the number of such monthly
percentages.
(C) (i) For purposes of this subparagraph, the term "domicile", in the
case of an individual, shall have the meaning ascribed to it under chap-
ter seventeen of this title; an estate or trust is domiciled in the city
if it is a city resident estate or trust as defined in paragraph three
of subdivision (b) of section 11-1705 of the code of the preceding muni-
cipality; a business entity is domiciled in the city if the location of
the actual seat of management or control is in the city. It shall be
presumed that the domicile of a shareholder, with respect to any month,
is his, her or its mailing address on the records of the investment
company as of the last day of such month.
(ii) For purposes of this subparagraph, the term "investment company"
means a regulated investment company, as defined in section eight
hundred fifty-one of the internal revenue code, and a partnership to
which subdivision (a) of section seven thousand seven hundred four of
the internal revenue code applies, by virtue of paragraph three of
subdivision (c) of section seven thousand seven hundred four of such
code, and that meets the requirements of subdivision (b) of section
eight hundred fifty-one of such code. The provisions of this subpara-
graph shall be applied to the taxable year for federal income tax
purposes of the business entity that is asserted to constitute an
investment company that ends within the taxable year of the taxpayer.
(iii) For purposes of this subparagraph, the term "receipts from an
investment company" includes amounts received directly from an invest-
ment company as well as amounts received from the shareholders in such
investment company in their capacity as such.
(iv) For purposes of this subparagraph, the term "management services"
means the rendering of investment advice to an investment company,
making determinations as to when sales and purchases of securities are
to be made on behalf of an investment company, or the selling or
purchasing of securities constituting assets of an investment company,
and related activities, but only where such activity or activities are
performed pursuant to a contract with the investment company entered
into pursuant to subdivision (a) of section fifteen of the federal
investment company act of nineteen hundred forty, as amended.
(v) For purposes of this subparagraph, the term "distribution
services" means the services of advertising, servicing investor
accounts, including redemptions, marketing shares or selling shares of
an investment company, but, in the case of advertising, servicing inves-
tor accounts, including redemptions, or marketing shares, only where
such service is performed by a person who is, or was, in the case of a
closed end company, also engaged in the service of selling such shares.
In the case of an open end company, such service of selling shares must
be performed pursuant to a contract entered into pursuant to subdivision
(b) of section fifteen of the federal investment company act of nineteen
hundred forty, as amended.
A. 10030 460
(vi) For purposes of this subparagraph, the term "administration
services" includes (1) clerical, accounting, bookkeeping, data process-
ing, internal auditing, legal and tax services performed for an invest-
ment company but only (2) if the provider of such service or services
during the taxable year in which such service or services are sold also
sells management or distribution services, as defined in this paragraph,
to such investment company.
(6) (A) Provided, further, however, that a taxpayer principally
engaged in the conduct of aviation, other than as provided in clause (C)
of this subparagraph, shall, notwithstanding subparagraphs one through
five of this paragraph, determine the portion of entire net income to be
allocated within the city by multiplying its business income by a busi-
ness allocation percentage which is equal to the arithmetic average of
the following three percentages:
(i) the percentage determined by dividing aircraft arrivals and depar-
tures within the city by the taxpayer during the period covered by its
report by the total aircraft arrivals and departures within and without
the city during such period; provided, however, arrivals and departures
solely for maintenance or repair, refueling, where no debarkation or
embarkation of traffic occurs, arrivals and departures of ferry and
personnel training flights or arrivals and departures in the event of
emergency situations shall not be included in computing such arrival and
departure percentage; provided, further, the commissioner of finance may
also exempt from such percentage aircraft arrivals and departures of all
non-revenue flights including flights involving the transportation of
officers or employees receiving air transportation to perform mainte-
nance or repair services or where such officers or employees are trans-
ported in conjunction with an emergency situation or the investigation
of an air disaster, other than on a scheduled flight; provided, however,
that arrivals and departures of flights transporting officers and
employees receiving air transportation for purposes other than specified
above, without regard to remuneration, shall be included in computing
such arrival and departure percentage;
(ii) the percentage determined by dividing the revenue tons handled by
the taxpayer at airports within the city during such period by the total
revenue tons handled by it at airports within and without the city
during such period; and
(iii) the percentage determined by dividing the taxpayer's originating
revenue within the city for such period by its total originating revenue
within and without the city for such period.
(B) As used herein, the term "aircraft arrivals and departures" means
the number of landings and takeoffs of the aircraft of the taxpayer and
the number of air pickups and deliveries by the aircraft of such taxpay-
er; the term "originating revenue" means revenue to the taxpayer from
the transportation of revenue passengers and revenue property first
received by the taxpayer either as originating or connecting traffic at
airports; and the term "revenue tons handled" by the taxpayer at
airports means the weight in tons of revenue passengers, at two hundred
pounds per passenger, and revenue cargo first received either as origi-
nating or connecting traffic or finally discharged by the taxpayer at
airports;
(C) A foreign air carrier described in subparagraph one of paragraph
(c-1) of subdivision eight of section 11-602 of this subchapter shall
determine its business allocation percentage pursuant to the provisions
of subparagraphs one through four of this paragraph, except that the
numerators and denominators involved in such computation shall exclude
A. 10030 461
property to the extent employed in generating income excluded from
entire net income pursuant to the provisions of paragraph (c-1) of
subdivision eight of section 11-602 of this subchapter, exclude such
receipts as are excluded from entire net income for the taxable year
pursuant to the provisions of paragraph (c-1) of subdivision eight of
section 11-602 of this subchapter, and exclude wages, salaries or other
personal service compensation which are directly attributable to the
generation of income excluded from entire net income for the taxable
year pursuant to the provisions of paragraph (c-1) of subdivision eight
of section 11-602 of this subchapter.
(7) Provided, further, however, that a taxpayer principally engaged in
the operation of vessels shall, notwithstanding subparagraphs one
through six of this paragraph, determine the portion of entire net
income to be allocated within the city by multiplying its business
income by a business allocation percentage determined by dividing the
aggregate number of working days of the vessels it owns or leases in
territorial waters of the city during the period covered by its report
by the aggregate number of working days of all the vessels it owns or
leases during such period.
(8) (A) For taxable years beginning on or after July first, nineteen
hundred ninety-six and before January first, two thousand eleven, a
manufacturing corporation may elect to determine its business allocation
percentage by adding together the percentages determined under subpara-
graphs one, two and three of this paragraph and an additional percentage
equal to the percentage determined under subparagraph two of this para-
graph, and dividing the result by the number of percentages so added
together.
(B) An election under this subparagraph must be made on a timely
filed, determined with regard to extensions granted, original report for
the taxable year. Once made for a taxable year, such election shall be
irrevocable for that taxable year. A separate election must be made for
each taxable year. A manufacturing corporation that has failed to make
an election as provided in this clause shall be required to determine
its business allocation percentage without regard to the provisions of
this subparagraph. Notwithstanding anything in this clause to the
contrary, the commissioner of finance may permit a manufacturing corpo-
ration to make or revoke an election under this subparagraph, upon such
terms and conditions as the commissioner may prescribe, where the
commissioner determines that such permission should be granted in the
interests of fairness and equity due to a change in circumstances
resulting from an audit adjustment.
(C) As used in this subparagraph, the term "manufacturing corporation"
means a corporation primarily engaged in the manufacturing and sale
thereof of tangible personal property; and the term "manufacturing"
includes the process, including the assembly process, (i) of working raw
materials into wares suitable for use or (ii) which gives new shapes,
new qualities or new combinations to matter which already has gone
through some artificial process, by the use of machinery, tools, appli-
ances and other similar equipment. A corporation shall be deemed to be
primarily engaged in the activities described in the provisions of this
subparagraph if more than fifty percent of its gross receipts for the
taxable year are attributable to such activities.
(D) Notwithstanding anything to the contrary, if a taxpayer that is
otherwise eligible to make the election authorized by this subparagraph
is required or permitted to make a report on a combined basis with one
or more other corporations pursuant to subdivision four of section
A. 10030 462
11-605 of this chapter, the taxpayer shall be permitted to make an
election under this subparagraph only if such taxpayer and such other
corporation or corporations would be a manufacturing corporation if they
were treated as a single corporation. In making such determination,
intercorporate transactions shall be eliminated. Where such election has
been made by the taxpayer for a taxable year, each of the other corpo-
rations included in the combined report shall also be deemed to have
made a proper election under this subparagraph for such taxable year.
(9) Special rules for publishers and broadcasters. (A) Notwithstanding
anything in subparagraph two of this paragraph to the contrary and
except as provided in clause (C) of this subparagraph, in the case of a
taxpayer engaged in the business of publishing newspapers or period-
icals, there shall be allocated to the city, for purposes of subpara-
graph two of this paragraph, the gross sales or charges for services
arising from sales of advertising contained in such newspapers or peri-
odicals, to the extent that such newspapers or periodicals are delivered
to points within the city.
(B) Notwithstanding anything in subparagraph two of this paragraph to
the contrary and except as provided in clause (C) of this subparagraph,
in the case of a taxpayer engaged in the business of broadcasting radio
or television programs, whether through the public airwaves or by cable,
direct or indirect satellite transmission, or any other means of trans-
mission, there shall be allocated to the city, for purposes of subpara-
graph two of this paragraph, a portion of the gross sales or charges for
services arising from the broadcasting of such programs and of commer-
cial messages in connection therewith, such portion to be determined
according to the number of listeners or viewers within and without the
city.
(C) Notwithstanding anything in clause (A) or (B) of this subparagraph
to the contrary, in the case of a taxpayer engaged in the business of
publishing newspapers or periodicals, or broadcasting radio or tele-
vision programs, whether through the public airwaves or by cable, direct
or indirect satellite transmission, or any other means of transmission,
there shall be allocated to the city, for purposes of subparagraph two
of this paragraph, the gross sales or charges to subscribers located in
the city for subscriptions to such newspapers, periodicals, or program
services. For purposes of this clause, a subscriber shall be deemed
located in the city if, in the case of newspapers and periodicals, the
mailing address for the subscription is within the city and, in the case
of program services, the billing address for the subscription is within
the city. For purposes of this clause, "subscriber" shall mean a member
of the general public who receives such newspapers, periodicals or
program services and does not further distribute them.
(10) Notwithstanding subparagraphs one through five of this paragraph,
but subject to subparagraph eight of this paragraph, the business allo-
cation percentage, to the extent that it is computed by reference to the
percentages determined under subparagraphs one, two and three of this
paragraph, shall be computed in the manner set forth in this subpara-
graph.
(A) For taxable years beginning in two thousand nine, the business
allocation percentage shall be determined by adding together the follow-
ing percentages:
(i) the product of thirty percent and the percentage determined under
subparagraph one of this paragraph,
(ii) the product of forty percent and the percentage determined under
subparagraph two of this paragraph, and
A. 10030 463
(iii) the product of thirty percent and the percentage determined
under subparagraph three of this paragraph.
(B) For taxable years beginning in two thousand ten, the business
allocation percentage shall be determined by adding together the follow-
ing percentages:
(i) the product of twenty-seven percent and the percentage determined
under subparagraph one of this paragraph,
(ii) the product of forty-six percent and the percentage determined
under subparagraph two of this paragraph, and
(iii) the product of twenty-seven percent and the percentage deter-
mined under subparagraph three of this paragraph.
(C) For taxable years beginning in two thousand eleven, the business
allocation percentage shall be determined by adding together the follow-
ing percentages:
(i) the product of twenty-three and one-half percent and the percent-
age determined under subparagraph one of this paragraph,
(ii) the product of fifty-three percent and the percentage determined
under subparagraph two of this paragraph, and
(iii) the product of twenty-three and one-half percent and the
percentage determined under subparagraph three of this paragraph.
(D) For taxable years beginning in two thousand twelve, the business
allocation percentage shall be determined by adding together the follow-
ing percentages:
(i) the product of twenty percent and the percentage determined under
subparagraph one of this paragraph,
(ii) the product of sixty percent and the percentage determined under
subparagraph two of this paragraph, and
(iii) the product of twenty percent and the percentage determined
under subparagraph three of this paragraph.
(E) For taxable years beginning in two thousand thirteen, the business
allocation percentage shall be determined by adding together the follow-
ing percentages:
(i) the product of sixteen and one-half percent and the percentage
determined under subparagraph one of this paragraph,
(ii) the product of sixty-seven percent and the percentage determined
under subparagraph two of this paragraph, and
(iii) the product of sixteen and one-half percent and the percentage
determined under subparagraph three of this paragraph.
(F) For taxable years beginning in two thousand fourteen, the business
allocation percentage shall be determined by adding together the follow-
ing percentages:
(i) the product of thirteen and one-half percent and the percentage
determined under subparagraph one of this paragraph,
(ii) the product of seventy-three percent and the percentage deter-
mined under subparagraph two of this paragraph, and
(iii) the product of thirteen and one-half percent and the percentage
determined under subparagraph three of this paragraph.
(G) For taxable years beginning in two thousand fifteen, the business
allocation percentage shall be determined by adding together the follow-
ing percentages:
(i) the product of ten percent and the percentage determined under
subparagraph one of this paragraph,
(ii) the product of eighty percent and the percentage determined under
subparagraph two of this paragraph, and
(iii) the product of ten percent and the percentage determined under
subparagraph three of this paragraph.
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(H) For taxable years beginning in two thousand sixteen, the business
allocation percentage shall be determined by adding together the follow-
ing percentages:
(i) the product of six and one-half percent and the percentage deter-
mined under subparagraph one of this paragraph,
(ii) the product of eighty-seven percent and the percentage determined
under subparagraph two of this paragraph, and
(iii) the product of six and one-half percent and the percentage
determined under subparagraph three of this paragraph.
(I) For taxable years beginning in two thousand seventeen, the busi-
ness allocation percentage shall be determined by adding together the
following percentages:
(i) the product of three and one-half percent and the percentage
determined under subparagraph one of this paragraph,
(ii) the product of ninety-three percent and the percentage determined
under subparagraph two of this paragraph, and
(iii) the product of three and one-half percent and the percentage
determined under subparagraph three of this paragraph.
(J) For taxable years beginning after two thousand seventeen, the
business allocation percentage shall be the percentage determined under
subparagraph two of this paragraph.
(K) The commissioner shall promulgate rules necessary to implement the
provisions of this subparagraph under such circumstances where any of
the percentages to be determined under subparagraph one, two or three of
this paragraph cannot be determined because the taxpayer has no proper-
ty, receipts or wages within or without the city.
(11) (A) In the case of a taxpayer which is a registered securities or
commodities broker or dealer, the receipts specified in items (i)
through (vii) of this clause shall be deemed to arise from services
performed within the city to the extent set forth in each of such items.
(i) Receipts constituting brokerage commissions derived from the
execution of securities or commodities purchase or sales orders for the
accounts of customers shall be deemed to arise from services performed
at the mailing address in the records of the taxpayer of the customer
who is responsible for paying such commissions.
(ii) Receipts constituting margin interest earned on behalf of broker-
age accounts shall be deemed to arise from services performed at the
mailing address in the records of the taxpayer of the customer who is
responsible for paying such margin interest.
(iii) Gross income, including any accrued interest or dividends, from
principal transactions for the purchase or sale of stocks, bonds,
foreign exchange and other securities or commodities, including futures
and forward contracts, options and other types of securities or commod-
ities derivatives contracts, shall be deemed to arise from services
performed within the city either (I) to the extent that production cred-
its are awarded to branches, offices or employees of the taxpayer within
the city as a result of such principal transactions or (II) if the
taxpayer so elects, to the extent that the gross proceeds from such
principal transactions, determined without deduction for any cost
incurred by the taxpayer to acquire the securities or commodities, are
generated from sales of securities or commodities to customers within
the city based upon the mailing addresses of such customers in the
records of the taxpayer. For purposes of subitem (II) of this item, the
taxpayer shall separately calculate such gross income from principal
transactions by type of security or commodity. For purposes of this
item, gross income from principal transactions shall be determined after
A. 10030 465
the deduction of any cost incurred by the taxpayer to acquire the secu-
rities or commodities. For purposes of this subparagraph, the term
"production credits" means credits granted pursuant to the internal
accounting system used by the taxpayer to measure the amount of revenue
that should be awarded to a particular branch or office or employee of
the taxpayer which is based, at least in part, on the branch's, the
office's or the employee's particular activities. Upon request, the
taxpayer shall be required to furnish a detailed explanation of such
internal accounting system to the department.
(iv) (I) Receipts constituting fees earned by the taxpayer for advi-
sory services to a customer in connection with the underwriting of secu-
rities for such customer, such customer being the entity which is
contemplating issuing or is issuing securities, or fees earned by the
taxpayer for managing an underwriting shall be deemed to arise from
services performed at the mailing address in the records of the taxpayer
of such customer who is responsible for paying such fees.
(II) Receipts constituting the primary spread or selling concession
from underwritten securities shall be deemed to arise from services
performed within the city to the extent that production credits are
awarded to branches, offices or employees of the taxpayer within the
city as a result of the sale of the underwritten securities.
(III) The term "primary spread" means the difference between the price
paid by the taxpayer to the issuer of the securities being marketed and
the price received from the subsequent sale of the underwritten securi-
ties at the initial public offering price, less any selling concession
and any fees paid to the taxpayer for advisory services or any manager's
fees, if such fees are not paid by the customer to the taxpayer sepa-
rately. The term "public offering price" means the price agreed upon by
the taxpayer and the issuer at which the securities are to be offered to
the public. The term "selling concession" means the amount paid to the
taxpayer for participating in the underwriting of a security where the
taxpayer is not the lead underwriter.
(v) Receipts constituting interest earned by the taxpayer on loans and
advances made by the taxpayer to a corporation affiliated with the
taxpayer but with which the taxpayer is not permitted or required to
file a combined report pursuant to subdivision four of section 11-605 of
this subchapter shall be deemed to arise from services performed at the
principal place of business of such affiliated corporation.
(vi) Receipts constituting account maintenance fees shall be deemed to
arise from services performed at the mailing address in the records of
the taxpayer of the customer who is responsible for paying such account
maintenance fees.
(vii) Receipts constituting fees for management or advisory services,
including fees for advisory services in relation to merger or acquisi-
tion activities but excluding fees paid for services described in item
(ii) of clause (B) of subparagraph two of this paragraph, shall be
deemed to arise from services performed at the mailing address in the
records of the taxpayer of the customer who is responsible for paying
such fees.
(B) For purposes of this subparagraph, the term "securities" shall
have the same meaning as in paragraph two of subdivision (c) of section
four hundred seventy-five of the internal revenue code and the term
"commodities" shall have the same meaning as in paragraph two of subdi-
vision (e) of section four hundred seventy-five of the internal revenue
code. The term "registered securities or commodities broker or dealer"
means a broker or dealer registered as such by the securities and
A. 10030 466
exchange commission or the commodities futures trading commission, and
shall include an over-the-counter derivatives dealer as defined under
regulations of the securities and exchange commission at title 17, part
240, section 3b-12 of the code of federal regulations (17 CFR
240.3b-12).
(C) If the taxpayer receives any of the receipts enumerated in clause
(A) of this subparagraph as a result of a securities correspondent
relationship such taxpayer has with another registered securities or
commodities broker or dealer with the taxpayer acting in this relation-
ship as the clearing firm, such receipts shall be deemed to arise from
services performed within the city to the extent set forth in each of
the items of clause (A) of this subparagraph. The amount of such
receipts shall exclude the amount the taxpayer is required to pay to the
correspondent firm for such correspondent relationship. If the taxpayer
receives any of the receipts enumerated in clause (A) of this subpara-
graph as a result of a securities correspondent relationship such
taxpayer has with another registered securities or commodities broker or
dealer with the taxpayer acting in this relationship as the introducing
firm, such receipts shall be deemed to arise from services performed
within the city to the extent set forth in each of the items of clause
(A) of this subparagraph.
(D) If, for purposes of item (i) or (ii), subitem (I) of item (iv), or
item (vi), or (vii) of clause (A) of this subparagraph, the taxpayer is
unable from its records to determine the mailing address of the custom-
er, the receipts enumerated in any of such items shall be deemed to
arise from services performed at the branch or office of the taxpayer
that generates the transaction for the customer that generated such
receipts.
(b) multiply its investment income by an investment allocation
percentage to be determined by:
(1) multiplying the amount of its investment capital invested in each
stock, bond or other security, other than governmental securities,
during the period covered by its report by the issuer's allocation
percentage of the issuer or obligor thereof.
(i) In the case of an issuer or obligor subject to tax under this
subchapter, subchapter three-A or subchapter four of this chapter, or
subject to tax as a utility corporation under chapter eleven of this
title, the issuer's allocation percentage shall be the percentage of the
appropriate measure, which is required to be allocated within the city
on the report or reports, if any, required of the issuer or obligor
under this title for the preceding year. The "appropriate measure" shall
be defined as: in the case of an issuer or obligor subject to this
subchapter or subchapter three-A, entire capital; in the case of an
issuer or obligor subject to subchapter four of this chapter, issued
capital stock; in the case of an issuer or obligor subject to chapter
eleven of this title as a utility corporation, gross income.
(ii) In the case of an issuer or obligor subject to tax under part
four of subchapter three of this chapter, the issuer's allocation
percentage shall be determined as follows:
(A) In the case of a banking corporation described in paragraphs one
through eight of subdivision (a) of section 11-640 of this chapter which
is organized under the laws of the United States, this state or any
other state of the United States, the issuer's allocation percentage
shall be its alternative entire net income allocation percentage, as
defined in subdivision (c) of section 11-642 of this chapter, for the
preceding year. In the case of such a banking corporation whose alterna-
A. 10030 467
tive entire net income for the preceding year is derived exclusively
from business carried on within the city, its issuer's allocation
percentage shall be one hundred percent.
(B) In the case of a banking corporation described in paragraph two of
subdivision (a) of section 11-640 of this chapter which is organized
under the laws of a country other than the United States, the issuer's
allocation percentage shall be determined by dividing (I) the amount
described in clause (i) of subparagraph (A) of paragraph two of subdivi-
sion (a) of section 11-642 of this chapter with respect to such issuer
or obligor for the preceding year, by (II) the gross income of such
issuer or obligor from all sources within and without the United States,
for such preceding year, whether or not included in alternative entire
net income for such year.
(C) In the case of an issuer or obligor described in paragraph nine of
subdivision (a) or in paragraph two of subdivision (d) of section 11-640
of this chapter, the issuer's allocation percentage shall be determined
by dividing the portion of the entire capital of the issuer or obligor
allocable to the city for the preceding year by the entire capital,
wherever located, of the issuer or obligor for the preceding year.
(iii) Provided, however, that if a report or reports for the preceding
year are not filed, or if filed do not contain information which would
permit the determination of such issuer's allocation percentage, then
the issuer's allocation percentage to be used shall, at the discretion
of the commissioner of finance, be either (A) the issuer's allocation
percentage derived from the most recently filed report or reports of the
issuer or obligor or (B) a percentage calculated, by the commissioner of
finance, reasonably to indicate the degree of economic presence in the
city of the issuer or obligor during the preceding year.
(2) adding together the sum so obtained, and
(3) dividing the result so obtained by the total of its investment
capital invested during such period in stocks, bonds and other securi-
ties; provided, however, that in case any investment capital is invested
in any stock, bond or other security during only a portion of the period
covered by the report, only such portion of such capital shall be taken
into account; and provided further, that if a taxpayer's investment
allocation percentage is zero, interest received on bank accounts shall
be multiplied by its business allocation percentage; and
(c) add the products so obtained.
(d) Except as provided in subparagraph three of this paragraph or in
paragraph (e) of this subdivision, at the election of the taxpayer there
shall be deducted from the portion of its entire net income allocated
within the city either or both of the items set forth in subparagraphs
one and two of this paragraph, except that only one of such deductions
shall be allowed with respect to any one item of property.
(1) Depreciation with respect to any property such as described in
subparagraph three of this paragraph, not exceeding twice the depreci-
ation allowed with respect to the same property for federal income tax
purposes. Such deduction shall be allowed only upon condition that
entire net income be computed without any deduction for the depreciation
of the same property, and the total of all deductions allowed in any
taxable year or years with respect to the depreciation of any such prop-
erty shall not exceed its cost or other basis.
(2) Expenditures paid or incurred during the taxable year for the
construction, reconstruction, erection or acquisition of any property
such as described in subparagraph three of this paragraph which is used
or to be used for purposes of research and development in the exper-
A. 10030 468
imental or laboratory sense. Such purposes shall not be deemed to
include the ordinary testing or inspection of materials or products for
quality control, efficiency surveys, management studies, consumer
surveys, advertising, promotions or research in connection with liter-
ary, historical or similar projects. Such deduction shall be allowed
only on condition that entire net income for the taxable year and all
succeeding taxable years be computed without the deduction of any such
expenditures and without any deduction for depreciation of the same
property, except to the extent that its basis may be attributable to
factors other than such expenditures, or in case a deduction is allow-
able pursuant to this subparagraph for only a part of such expenditures,
on condition that any deduction allowed for federal income tax purposes
on account of such expenditures or on account of depreciation of the
same property be proportionately reduced in computing entire net income
for the taxable year and all succeeding taxable years. With respect to
property which is used or to be used for research and development only
in part, or during only part of its useful life, a proportionate part of
such expenditures shall be deductible. If all or part of such expendi-
tures with respect to any property shall have been deducted as provided
in this subparagraph, and such property is used for purposes other than
research and development to a greater extent than originally reported,
the taxpayer shall report such use in its report for the first taxable
year during which it occurs, and the commissioner of finance may recom-
pute the tax for the year or years for which such deduction was allowed,
and may assess any additional tax resulting from such recomputation
regardless of the time limitations set forth in section 11-674 of this
chapter.
(3) Such deductions shall be allowed only with respect to tangible
property which is depreciable pursuant to section one hundred sixty-sev-
en of the internal revenue code, having a situs in the city and used in
the taxpayer's trade or business, (A) constructed, reconstructed or
erected after December thirty-first, nineteen hundred sixty-five, pursu-
ant to a contract which was, on or before December thirty-first, nine-
teen hundred sixty-seven, and at all times thereafter, binding on the
taxpayer or, property, the physical construction, reconstruction or
erection of which began on or before December thirty-first, nineteen
hundred sixty-seven or which began after such date pursuant to an order
placed on or before December thirty-first, nineteen hundred sixty-seven,
and then only with respect to that portion of the basis thereof or the
expenditures relating thereto which is properly attributable to such
construction, reconstruction or erection after December thirty-first,
nineteen hundred sixty-five, or (B) acquired after December thirty-
first, nineteen hundred sixty-five, pursuant to a contract which was, on
or before December thirty-first, nineteen hundred sixty-seven, and at
all times thereafter, binding on the taxpayer or pursuant to an order
placed on or before December thirty-first, nineteen hundred sixty-seven,
by purchase as defined in section one hundred seventy-nine (d) of the
internal revenue code, if the original use of such property commenced
with the taxpayer, commenced in the city and commenced after December
thirty-first, nineteen hundred sixty-five, or (C) acquired, constructed,
reconstructed, or erected subsequent to December thirty-first nineteen
hundred sixty-seven, if such acquisition, construction, reconstruction
or erection is pursuant to a plan of the taxpayer which was in existence
December thirty-first, nineteen hundred sixty-seven and not thereafter
substantially modified, and such acquisition, construction, recon-
struction or erection would qualify under the rules in paragraphs four,
A. 10030 469
five or six of subsection (h) of section forty-eight of the internal
revenue code provided all references in such paragraphs four, five and
six to the dates October nine, nineteen hundred sixty-six, and October
ten, nineteen hundred sixty-six, shall be read as December thirty-first,
nineteen hundred sixty-seven. A taxpayer shall be allowed a deduction
under clauses (A), (B) or (C) of this subparagraph only if the tangible
property shall be delivered or the construction, reconstruction or
erection shall be completed on or before December thirty-first, nineteen
hundred sixty-nine, except in the case of tangible property which is
acquired, constructed, reconstructed or erected pursuant to a contract
which was, on or before December thirty-first, nineteen hundred sixty-
seven, and at all times thereafter, binding on the taxpayer. Provided,
however, for any taxable year beginning on or after January first, nine-
teen hundred sixty-eight, a taxpayer shall not be allowed a deduction
under this paragraph with respect to tangible personal property leased
by it to any other person or corporation. Accordingly, any contract or
agreement to lease or rent or for a license to use such property shall
be considered a lease. With respect to property which the taxpayer uses
itself for purposes other than leasing for part of a taxable year and
leases for a part of a taxable year, the taxpayer shall be allowed a
deduction under this paragraph in proportion to the part of the year it
uses such property.
(4) If the deductions allowable for any taxable year, pursuant to this
subdivision, exceed the portion of the taxpayer's entire net income
allocated to the city for such year, the excess may be carried over to
the following taxable year or years and may be deducted from the portion
of the taxpayer's entire net income allocated to the city for such year
or years.
(5) In any taxable year when property is sold or otherwise disposed
of, with respect to which a deduction has been allowed pursuant to
subparagraph one or two of this paragraph, the gain or loss thereon
entering into the computation of federal taxable income shall be disre-
garded in computing entire net income, and there shall be added to or
subtracted from the portion of entire net income allocated within the
city the gain or loss upon such sale or other disposition. In computing
such gain or loss the basis of the property sold or disposed of shall be
adjusted to reflect the deduction allowed with respect to such property
pursuant to subparagraph one or two of this paragraph. Provided, howev-
er, that no loss shall be recognized for the purposes of this subpara-
graph with respect to a sale or other disposition of property to a
person whose acquisition thereof is not a purchase as defined in section
one hundred seventy-nine (d) of the internal revenue code.
(e) At the election of the taxpayer there shall be deducted from the
portion of its entire net income allocated within the city either or
both of the items set forth in subparagraphs one and two of this para-
graph, except that only one of such deductions shall be allowed with
respect to any one item of property.
(1) Depreciation with respect to any property such as described in
subparagraphs three and four of this paragraph, not exceeding twice the
depreciation allowed with respect to the same property for federal
income tax purposes. Such deduction shall be allowed only upon condition
that entire net income be computed without any deduction for the depre-
ciation of the same property, and the total of all deductions allowed in
any taxable year or years with respect to the depreciation of any such
property shall not exceed its cost or other basis multiplied by the
taxpayer's business allocation percentage determined under this subdivi-
A. 10030 470
sion for the first year it deducts such depreciation under this para-
graph.
(2) Expenditures paid or incurred during the taxable year for the
construction, reconstruction, erection or acquisition of any property
such as described in subparagraph three of this paragraph which is used
or to be used for purposes of research and development in the exper-
imental or laboratory sense. Such purposes shall not be deemed to
include the ordinary testing or inspection of materials or products for
quality control, efficiency surveys, management studies, consumer
surveys, advertising, promotions or research in connection with liter-
ary, historical or similar projects. Such deductions shall be allowed
only on condition that it does not exceed the amount of the expenditures
multiplied by the taxpayer's business allocation percentage determined
under this subdivision for the year the expenditures are paid or
incurred and that entire net income for the taxable year and all
succeeding taxable years be computed without the deduction of any such
expenditures and without any deduction for depreciation of the same
property, except to the extent that its basis may be attributable to
factors other than such expenditures, or in case a deduction is allow-
able pursuant to this subparagraph for only a part of such expenditures,
on condition that any deduction allowed for federal income tax purposes
on account of such expenditures or on account of depreciation of the
same property be proportionately reduced in computing entire net income
for the taxable year and all succeeding taxable years. With respect to
property which is used or to be used for research and development only
in part, or during only part of its useful life, a proportionate part of
such expenditures shall be deductible. If all or part of such expendi-
tures with respect to any property shall have been deducted as provided
in this subparagraph, and such property is used for purposes other than
research and development to a greater extent than originally reported,
the taxpayer shall report such use in its report for the first taxable
year during which it occurs, and the commissioner of finance may recom-
pute the tax for the year or years for which such deduction was allowed,
and may assess any additional tax resulting from such recomputation
regardless of the time limitations set forth in section 11-674 of this
chapter.
(3) Such deduction shall be allowed only with respect to tangible
property which is depreciable pursuant to section one hundred sixty-sev-
en of the internal revenue code, having a situs in the city and used in
the taxpayer's trade or business (A) the construction, reconstruction or
erection of which is completed after December thirty-first, nineteen
hundred sixty-seven, and then only with respect to that portion of the
basis thereof or the expenditures relating thereto which is properly
attributable to such construction, reconstruction or erection after
December thirty-first, nineteen hundred sixty-five, or (B) acquired
after December thirty-first, nineteen hundred sixty-seven by purchase or
defined in section one hundred seventy-nine (d) of the internal revenue
code, if the original use of such property commenced with the taxpayer,
commenced in this state and commenced after December thirty-first nine-
teen hundred sixty-five. Provided, however, for any taxable year begin-
ning on or after January first, nineteen hundred sixty-eight, a taxpayer
shall not be allowed a deduction under this paragraph with respect to
tangible personal property leased by it to any other person or corpo-
ration. Accordingly, any contract or agreement to lease or rent or for a
license to use such property shall be considered a lease. With respect
to property which the taxpayer uses itself for purposes other than leas-
A. 10030 471
ing for part of a taxable year and leases for a part of a taxable year,
the taxpayer shall be allowed a deduction under this paragraph in
proportion to the part of the year it uses such property.
(4) A deduction under subparagraph one of this paragraph shall be
allowed with respect to tangible property described in subparagraph
three only if such property is principally used by the taxpayer in the
production of goods by manufacturing; processing; assembling; refining;
mining; extracting; farming; agriculture; horticulture; floriculture;
viticulture or commercial fishing. For purposes of this subparagraph,
manufacturing shall mean the process of working raw materials into wares
suitable for use or which gives new shapes, new qualities or new combi-
nations to matter which already has gone through some artificial process
by the use of machinery, tools, appliances and other similar equipment.
Property used in the production of goods shall include machinery, equip-
ment or other tangible property which is principally used in the repair
and service of other machinery, equipment or other tangible property
used principally in the production of goods and shall include all facil-
ities used in the manufacturing operation, including storage of material
to be used in manufacturing and of the products that are manufactured.
At the option of the taxpayer, air and water pollution control facili-
ties which qualify for elective deductions under paragraph (g) of subdi-
vision eight of section 11-602 of this subchapter may be treated, for
purposes of this paragraph, as tangible property principally used in the
production of goods by manufacturing; processing; assembling; refining;
mining; extracting; farming; agriculture; horticulture; floriculture;
viticulture; or commercial fishing, in which event, a deduction shall
not be allowed under such paragraph (g).
(5) Subject to the limitation imposed by subparagraphs one and two of
this paragraph, if the deductions allowable for any taxable year, pursu-
ant to this subdivision, exceed the portion of the taxpayer's entire net
income allocated to the city for such year, the excess may be carried
over to the following taxable year or years and may be deducted from the
portion of the taxpayer's entire net income allocated to the city for
such year or years.
(6) In any taxable year when property is sold or otherwise disposed
of, with respect to which a deduction has been allowed pursuant to
subparagraph one or two of this paragraph, the gain or loss thereon
entering into the computation of federal taxable income shall be disre-
garded in computing entire net income, and there shall be added to or
subtracted from the portion of entire net income allocated within the
city the gain or loss upon such sale or other disposition. In computing
such gain or loss the basis of the property sold or disposed of shall be
adjusted to reflect the deduction allowed with respect to such property
pursuant to subparagraph one or two of this paragraph. Provided, howev-
er, that no loss shall be recognized for the purposes of this subpara-
graph with respect to a sale or other disposition of property to a
person whose acquisition thereof is not a purchase as defined in section
one hundred seventy-nine (d) of the internal revenue code.
4. The portion of the business capital of a taxpayer to be allocated
within the city shall be determined by multiplying the amount thereof by
the business allocation percentage determined as provided for in this
subdivision. Provided, however, such business allocation percentage, for
purposes of allocating business capital, shall (a) for taxable years
beginning before nineteen hundred ninety-four, be determined without
regard to clause (C) of subparagraph six of paragraph (a) of subdivision
three of this section and (b) for taxable years beginning after nineteen
A. 10030 472
hundred ninety-three, be determined with regard to such clause (C) but
only in the case of a taxpayer subject to the provisions of paragraph
(b) of subdivision six of section 11-602 of this subchapter.
5. The portion of the investment capital of a taxpayer to be allocated
within the city shall be determined by multiplying the amount thereof by
the investment allocation percentage determined as provided in this
subdivision.
7. The portion of the subsidiary capital of a taxpayer to be allocated
within the city shall be determined by (a) multiplying the amount of its
subsidiary capital invested in each subsidiary during the period covered
by its report, or, in the case of any such capital so invested during
only a portion of such period, such portion of such capital, by the
issuer's allocation percentage, as defined in subparagraph one of para-
graph (b) of subdivision three of this section, of each such subsidiary
and (b) adding together the sums so obtained.
8. If it shall appear to the commissioner of finance that any business
or investment allocation percentage determined as provided in this
subdivision does not properly reflect the activity, business, income or
capital of a taxpayer within the city, the commissioner of finance shall
be authorized in his or her discretion, in the case of a business allo-
cation percentage, to adjust it by (a) excluding one or more of the
factors therein, (b) including one or more other factors, such as
expenses, purchases, contract values, minus subcontract values, (c)
excluding one or more assets in computing such allocation percentage,
provided the income therefrom is also excluded in determining entire net
income, or (d) any other similar or different method calculated to
effect a fair and proper allocation of the income and capital reasonably
attributable to the city, and in the case of an investment allocation
percentage to adjust it by excluding one or more assets in computing
such percentage provided the income therefrom is also excluded in deter-
mining entire net income. The commissioner of finance from time to time
shall publish all rulings of general public interest with respect to any
application of the provisions of this subdivision.
9. If it shall appear to the commissioner of finance that any business
allocation percentage determined as provided in subdivisions one through
eight of this section does not properly reflect the activity, business,
income or capital of a taxpayer within the city, the commissioner of
finance shall be authorized in his or her discretion to adjust it by (a)
excluding one or more of the factors therein, (b) including one or more
other factors, such as expenses, purchases, contract values, minus
subcontract values, (c) excluding one or more assets in computing such
allocation percentage, provided the income therefrom, is also excluded
in determining entire net income, or (d) any other similar or different
method calculated to effect a fair and proper allocation of the income
and capital reasonably attributable to the city, and in the case of an
investment allocation percentage, to adjust it by excluding one or more
assets in computing such percentage provided the income therefrom is
also excluded in determining entire net income. The commissioner of
finance from time to time shall publish all rulings of general public
interest with respect to any application of the provisions of this
subdivision.
11. (a) A taxpayer shall be allowed a credit, to be refunded in the
manner as provided in this subdivision, against the tax imposed by this
chapter. The amount of such credit shall be fifty percent of the tax
incurred in market making transactions under the provisions of article
twelve of the tax law on such transactions subject to such tax occurring
A. 10030 473
on and after August first, nineteen hundred seventy-six and paid by such
taxpayer, except when such tax shall have been paid pursuant to section
two hundred seventy-nine-a of such tax law.
(b) For purposes of this subdivision:
(1) the term "taxpayer" shall mean any corporation subject to tax
under this chapter registered with the United States securities and
exchange commission in accordance with subsection (b) of section fifteen
of the securities exchange act of nineteen hundred thirty-four, as
amended, and acting as a dealer in a transaction described in subpara-
graph two of this paragraph, and
(2) the term "market making transaction" shall mean any transaction
involving a sale, including a short sale, by a dealer of shares or
certificates subject to the tax imposed by article twelve of the tax
law, provided such shares or certificates are sold:
(i) as stock in trade or inventory or as property held for sale in the
ordinary course of such dealer's trade or business, including transfers
which are part of an underwriting,
(ii) in (a) a bona fide arbitrage transaction; (b) a bona fide hedge
transaction involving a long or short position in any equity security
and a long or short position in a security entitling the holder to
acquire or sell such equity security; or (c) a risk arbitrage trans-
action in connection with a merger, acquisition, tender offer, recap-
italization, reorganization, or similar transaction, or
(iii) to offset a transaction made in error.
Provided, however, that, except as to subclause (c) of clause (ii) of
this paragraph, the term "market making transaction" shall not include
any sale of shares or certificates identified in such dealer's records
as a security held for investment within the meaning of section twelve
hundred thirty-six of the internal revenue code.
(c) The credit allowed under this subdivision for any taxable year
shall be deemed to be an overpayment of tax by the taxpayer to be cred-
ited or refunded in accordance with the provisions of section 11-677 of
this chapter, except as otherwise provided in subdivision three of
section 11-606 and subdivision eleven of section 11-608; provided,
however, that the provisions of this title notwithstanding, the amount
to be refunded pursuant to this subdivision shall not be paid prior to
the first day of the eighth month following the close of the taxable
year, and the provisions of subdivision three of section 11-679 of this
chapter notwithstanding interest shall be allowed and paid on the over-
payment of the credit under this subdivision from the first day of the
eleventh month following the close of the taxable year, or three months
after a claim for the credit or refund provided for in this subdivision
has been filed, whichever is later.
(d) Provided, however, that the credit provided under this subdivision
shall be allowed only to the extent that the amount of credit allowable
with respect to market making transactions under the provisions of this
subdivision, determined without regard to the provisions of this para-
graph, exceeds fifty percent of all rebates, provided for under the
provisions of section two hundred eighty-a of the tax law, allowed for
such taxes incurred in the same market making transactions with respect
to which the credit is determined. No credit shall be allowed under this
subdivision with respect to any tax incurred in market making trans-
actions occurring on or after October first, nineteen hundred eighty-
one.
12. (a) In addition to the credit allowed by subdivision eleven of
this section, a taxpayer shall be allowed a credit against the tax
A. 10030 474
imposed by this subchapter to be credited or refunded in the manner
provided in this section. The amount of such credit shall be the excess
of (A) the amount of sales and compensating use taxes imposed by section
eleven hundred seven of the tax law during the taxpayer's taxable year
which became legally due on or after and was paid on or after July
first, nineteen hundred seventy-seven, less any credits or refunds of
such taxes, with respect to the purchase or use by the taxpayer of
machinery or equipment for use or consumption directly and predominantly
in the production of tangible personal property, gas, electricity,
refrigeration or steam for sale, by manufacturing, processing, generat-
ing, assembling, refining, mining or extracting, or telephone central
office equipment or station apparatus or comparable telegraph equipment
for use directly and predominantly in receiving at destination or initi-
ating and switching telephone or telegraph communication, but not
including parts with a useful life of one year or less or tools or
supplies used in connection with such machinery, equipment or apparatus
over (B) the amount of any credit for such sales and compensating use
taxes allowed or allowable against the taxes imposed by subchapter two
of chapter eleven of this title for any periods embraced within the
taxable year of the taxpayer under this subchapter.
(b) The credit allowed under this subdivision for any taxable year
shall be deemed to be an overpayment of tax by the taxpayer to be cred-
ited or refunded, without interest, in accordance with the provisions of
section 11-677 of this chapter.
(c) Where the taxpayer receives a refund or credit of any tax imposed
under section eleven hundred seven of the tax law for which the taxpayer
had claimed a credit under the provisions of this subdivision in a prior
taxable year, the amount of such tax refund shall be added to the tax
imposed by subdivision one of section 11-603 of this subchapter, and
such amount shall be subtracted in computing entire net income for the
taxable year.
13. (a) In addition to any other credit allowed by this section, a
taxpayer shall be allowed a credit against the tax imposed by this
subchapter to be credited or refunded without interest, in the manner
provided in this section.
(1) Where a taxpayer shall have relocated to the city from a location
outside the state, and by such relocation shall have created a minimum
of one hundred industrial or commercial employment opportunities; and
where such taxpayer shall have entered into a written lease for the
relocation premises, the terms of which lease provide for increased
additional payments to the landlord which are based solely and directly
upon any increase or addition in real estate taxes imposed on the leased
premises, the taxpayer upon approval and certification by the industrial
and commercial incentive board shall be entitled to a credit against the
tax imposed by this subchapter. The amount of such credit shall be: An
amount equal to the annual increased payments actually made by the
taxpayer to the landlord which are solely and directly attributable to
an increase or addition to the real estate tax imposed upon the leased
premises. Such credit shall be allowed only to the extent that the
taxpayer has not otherwise claimed said amount as a deduction against
the tax imposed by this subchapter.
The industrial and commercial incentive board in approving and certi-
fying to the qualifications of the taxpayer to receive the tax credit
provided for in this subdivision shall first determine that the appli-
cant has met the requirements of this section, and further, that the
granting of the tax credit to the applicant is in the "public interest".
A. 10030 475
In determining that the granting of the tax credit is in the public
interest, the board shall make affirmative findings that: the granting
of the tax credit to the applicant will not effect an undue hardship on
similar taxpayers already located within the city; the existence of this
tax incentive has been instrumental in bringing about the relocation of
the applicant to the city; and the granting of the tax credit will
foster the economic recovery and economic development of the city.
The tax credit, if approved and certified by the industrial and
commercial incentive board, must be utilized annually by the taxpayer
for the length of the term of the lease or for a period not to exceed
ten years from the date of relocation whichever period is shorter.
(2) When used in this section, the following terms shall have the
following meanings:
(i) "Employment opportunity" means the creation of a full time posi-
tion of gainful employment for an industrial or commercial employee and
the actual hiring of such employee for the said position.
(ii) "Industrial employee" means one engaged in the manufacture or
assembling of tangible goods or the processing of raw materials.
(iii) "Commercial employee" means one engaged in the buying, selling
or otherwise providing of goods or services other than on a retail
basis.
(iv) "Retail" means the selling or otherwise disposing or furnishing
of tangible goods or services directly to the ultimate user or consumer.
(v) "Full time position" means the hiring of an industrial or commer-
cial employee in a position of gainful employment where the number of
hours worked by such employees is not less than thirty hours during any
given work week.
(vi) "Industrial and commercial incentive board" means the board
created pursuant to part three of subchapter two of chapter two of this
title.
(b) The credit allowed under this subdivision for any taxable year
shall be deemed to be an overpayment of tax by the taxpayer to be cred-
ited or refunded, without interest, in accordance with the provisions of
section 11-677 of this chapter.
14. (a) In addition to any other credit allowed by this section, a
taxpayer shall be allowed a credit against the tax imposed by this
subchapter to be credited or refunded without interest, in the manner
provided in this section. The amount of such credit shall be:
(1) A maximum of three hundred dollars for each commercial employment
opportunity and a maximum of five hundred dollars for each industrial
employment opportunity relocated to the city from an area outside the
state. Such credit shall be allowed to a taxpayer who relocates a mini-
mum of ten employment opportunities. The credit shall be allowed against
employment opportunity relocation costs incurred by the taxpayer. Such
credit shall be allowed only to the extent that the taxpayer has not
claimed a deduction for allowable employment opportunity relocation
costs. Such credit may be taken by the taxpayer in whole or in part in
the year in which the employment opportunity is relocated by such
taxpayer or either of the two years succeeding such event, provided,
however, no credit shall be allowed under this subdivision to a taxpayer
for industrial employment opportunities relocated to premises (A) that
are within an industrial business zone established pursuant to section
22-626 of this code and (B) for which a binding contract to purchase or
lease was first entered into by the taxpayer on or after July first, two
thousand five.
A. 10030 476
The commissioner of finance is empowered to promulgate rules and regu-
lations and to prescribe the form of application to be used by a taxpay-
er seeking such credit.
(2) When used in this section: (i) "Employment opportunity" means the
creation of a full time position of gainful employment for an industrial
or commercial employee and the actual hiring of such employee for the
said position.
(ii) "Industrial employee" means one engaged in the manufacture or
assembling of tangible goods or the processing of raw materials.
(iii) "Commercial employee" means one engaged in the buying, selling
or otherwise providing of goods or services other than on a retail
basis.
(iv) "Retail" means the selling or otherwise disposing of tangible
goods directly to the ultimate user or consumer.
(v) "Full time position" means the hiring of an industrial or commer-
cial employee in a position of gainful employment where the number of
hours worked by such employee is not less than thirty hours during any
given work week.
(vi) "Employment opportunity relocation costs" means the costs
incurred by the taxpayer in moving furniture, files, papers and office
equipment into the city from a location outside the state; the costs
incurred by the taxpayer in the moving and installation of machinery and
equipment into the city from a location outside the state; the costs of
installation of telephones and other communications equipment required
as a result of the relocation to the city from a location outside the
state; the cost incurred in the purchase of office furniture and
fixtures required as a result of the relocation to the city from a
location outside the state; and the cost of renovation of the premises
to be occupied as a result of the relocation provided, however, that
such renovation costs shall be allowable only to the extent that they do
not exceed seventy-five cents per square foot of the total area utilized
by the taxpayer in the occupied premises.
(b) The credit allowed under this section for any taxable year shall
be deemed to be an overpayment of tax by the taxpayer to be credited or
refunded without interest in accordance with the provisions of section
11-677 of this chapter.
17. (a) In addition to any other credit allowed by this section, a
taxpayer that has obtained the certifications required by chapter six-B
of title twenty-two of the preceding municipality code shall be allowed
a credit against the tax imposed by this subchapter. The amount of the
credit shall be the amount determined by multiplying five hundred
dollars or, in the case of a taxpayer that has obtained pursuant to
chapter six-B of such title twenty-two a certification of eligibility
dated on or after July first, nineteen hundred ninety-five, one thousand
dollars or, in the case of an eligible business that has obtained pursu-
ant to chapter six-B of such title twenty-two a certification of eligi-
bility dated on or after July first, two thousand, for a relocation to
eligible premises located within a revitalization area defined in subdi-
vision (n) of section 22-621 of the code of the preceding municipality,
three thousand dollars, by the number of eligible aggregate employment
shares maintained by the taxpayer during the taxable year with respect
to particular premises to which the taxpayer has relocated; provided,
however, with respect to a relocation for which no application for a
certificate of eligibility is submitted prior to July first, two thou-
sand three, to eligible premises that are not within a revitalization
area, if the date of such relocation as determined pursuant to subdivi-
A. 10030 477
sion (j) of section 22-621 of the code of the preceding municipality is
before July first, nineteen hundred ninety-five, the amount to be multi-
plied by the number of eligible aggregate employment shares shall be
five hundred dollars, and with respect to a relocation for which no
application for a certificate of eligibility is submitted prior to July
first, two thousand three, to eligible premises that are within a revi-
talization area, if the date of such relocation as determined pursuant
to subdivision (j) of such section is before July first, nineteen
hundred ninety-five, the amount to be multiplied by the number of eligi-
ble aggregate employment shares shall be five hundred dollars, and if
the date of such relocation as determined pursuant to subdivision (j) of
such section is on or after July first, nineteen hundred ninety-five,
and before July first, two thousand, one thousand dollars; provided,
however, that no credit shall be allowed for the relocation of any
retail activity or hotel services; provided, further, that no credit
shall be allowed under this subdivision to any taxpayer that has elected
pursuant to subdivision (d) of section 22-622 of the code of the preced-
ing municipality to take such credit against a gross receipts tax
imposed by chapter eleven of this title; and provided that in the case
of an eligible business that has obtained pursuant to chapter six-B of
such title twenty-two certifications of eligibility for more than one
relocation, the portion of the total amount of eligible aggregate
employment shares to be multiplied by the dollar amount specified in
this subdivision for each such certification of a relocation shall be
the number of total attributed eligible aggregate employment shares
determined with respect to such relocation pursuant to subdivision (o)
of section 22-621 of the code of the preceding municipality. For
purposes of this subdivision, the terms "eligible aggregate employment
shares," "relocate," "retail activity" and "hotel services" shall have
the meanings ascribed by section 22-621 of the code of the preceding
municipality.
(b) The credit allowed under this subdivision with respect to eligible
aggregate employment shares maintained with respect to particular prem-
ises to which the taxpayer has relocated shall be allowed for the first
taxable year during which such eligible aggregate employment shares are
maintained with respect to such premises and for any of the twelve
succeeding taxable years during which eligible aggregate employment
shares are maintained with respect to such premises; provided that the
credit allowed for the twelfth succeeding taxable year shall be calcu-
lated by multiplying the number of eligible aggregate employment shares
maintained with respect to such premises in the twelfth succeeding taxa-
ble year by the lesser of one and a fraction the numerator of which is
such number of days in the taxable year of relocation less the number of
days the eligible business maintained employment shares in the eligible
premises in the taxable year of relocation and the denominator of which
is the number of days in such twelfth succeeding taxable year during
which such eligible aggregate employment shares are maintained with
respect to such premises. Except as provided in paragraph (d) of this
subdivision, if the amount of the credit allowable under this subdivi-
sion for any taxable year exceeds the tax imposed for such year, the
excess may be carried over, in order, to the five immediately succeeding
taxable years and, to the extent not previously deductible, may be
deducted from the taxpayer's tax for such years.
(c) The credit allowable under this subdivision shall be deducted
after the credit allowed by subdivision eighteen of this section, but
prior to the deduction of any other credit allowed by this section.
A. 10030 478
(d) In the case of a taxpayer that has obtained a certification of
eligibility pursuant to chapter six-B of title twenty-two of the code of
the preceding municipality dated on or after July first, two thousand
for a relocation to eligible premises located within the revitalization
area defined in subdivision (n) of section 22-621 of the code of the
preceding municipality, the credits allowed under this subdivision, or
in the case of a taxpayer that has relocated more than once, the portion
of such credits attributed to such certification of eligibility pursuant
to paragraph (a) of this subdivision, against the tax imposed by this
chapter for the taxable year of such relocation and for the four taxable
years immediately succeeding the taxable year of such relocation, shall
be deemed to be overpayments of tax by the taxpayer to be credited or
refunded, without interest, in accordance with the provisions of section
11-677 of this chapter. For such taxable years, such credits or portions
thereof may not be carried over to any succeeding taxable year;
provided, however, that this paragraph shall not apply to any relocation
for which an application for a certification of eligibility was not
submitted prior to July first, two thousand three, unless the date of
such relocation is on or after July first, two thousand.
17-a. (a) In addition to any other credit allowed by this section, a
taxpayer shall be allowed a credit against the tax imposed by this
subchapter to be credited or refunded in the manner provided in this
subdivision. The amount of such credit shall be equal to the amount of
sales and compensating use taxes imposed by section eleven hundred seven
of the tax law during the taxpayer's taxable year, and the amount of any
interest imposed in connection therewith, which was paid after January
first, nineteen hundred ninety-five, less any credit or refund of such
taxes, or such interest, with respect to the purchase or use by the
taxpayer of the services described in subdivision (b) of section eleven
hundred five-b of the tax law.
(b) The credit allowed under this subdivision for any taxable year
shall be deemed to be an overpayment of tax by the taxpayer to be cred-
ited or refunded, without interest, in accordance with the provisions of
section 11-677 of this chapter.
(c) Where the taxpayer receives a refund or credit of any tax imposed
under section eleven hundred seven of the tax law, or of any interest
imposed in connection therewith, for which the taxpayer had claimed a
credit under the provisions of this subdivision in a prior taxable year,
the amount of such tax, or such interest, refund or credit shall be
added to the tax imposed by subdivision one of section 11-603 of this
subchapter, and such amount shall be subtracted in computing entire net
income for the taxable year.
17-b. (a) For taxable years beginning on or after January first, two
thousand six, in addition to any other credit allowed by this section,
an eligible business that first enters into a binding contract on or
after July first, two thousand five to purchase or lease eligible prem-
ises to which it relocates shall be allowed a one-time credit against
the tax imposed by this subchapter to be credited or refunded in the
manner hereinafter provided in this subdivision. The amount of such
credit shall be one thousand dollars per full-time employee; provided,
however, that the amount of such credit shall not exceed the lesser of
actual relocation costs or one hundred thousand dollars.
(b) When used in this subdivision, the following terms shall have the
following meanings:
(i) "Eligible business" means any business subject to tax under this
subchapter that (1) has been conducting substantial business operations
A. 10030 479
and engaging primarily in industrial and manufacturing activities at one
or more locations within the city of Staten Island or outside the state
of New York continuously during the twenty-four consecutive full months
immediately preceding relocation, (2) has leased the premises from which
it relocates continuously during the twenty-four consecutive full months
immediately preceding relocation, (3) first enters into a binding
contract on or after July first, two thousand five to purchase or lease
eligible premises to which such business will relocate, and (4) will be
engaged primarily in industrial and manufacturing activities at such
eligible premises.
(ii) "Eligible premises" means premises located entirely within an
industrial business zone. For any eligible business, an industrial busi-
ness zone tax credit shall not be granted with respect to more than one
eligible premises.
(iii) "Full-time employee" means (1) one person gainfully employed in
an eligible premises by an eligible business where the number of hours
required to be worked by such person is not less than thirty-five hours
per week; or (2) two persons gainfully employed in an eligible premises
by an eligible business where the number of hours required to be worked
by each such person is more than fifteen hours per week but less than
thirty-five hours per week.
(iv) "Industrial business zone" means an area within the city of
Staten Island established pursuant to section 22-626 of the code of the
preceding municipality.
(v) "Industrial business zone tax credit" means a credit, as provided
for in this subdivision, against a tax imposed under this subchapter.
(vi) "Industrial and manufacturing activities" means activities
involving the assembly of goods to create a different article, or the
processing, fabrication, or packaging of goods. Industrial and manufac-
turing activities shall not include waste management or utility
services.
(vii) "Relocation" means the physical relocation of furniture,
fixtures, equipment, machinery and supplies directly to an eligible
premises, from one or more locations of an eligible business, including
at least one location at which such business conducts substantial busi-
ness operations and engages primarily in industrial and manufacturing
activities. For purposes of this subdivision, the date of relocation
shall be (1) the date of the completion of the relocation to the eligi-
ble premises or (2) ninety days from the commencement of the relocation
to the eligible premises, whichever is earlier.
(viii) "Relocation costs" means costs incurred in the relocation of
such furniture, fixtures, equipment, machinery and supplies, including,
but not limited to, the cost of dismantling and reassembling equipment
and the cost of floor preparation necessary for the reassembly of the
equipment. Relocation costs shall include only such costs that are
incurred during the ninety-day period immediately following the
commencement of the relocation to an eligible premises. Relocation costs
shall not include costs for structural or capital improvements or items
purchased in connection with the relocation.
(c) The credit allowed under this subdivision for any taxable year
shall be deemed to be an overpayment of tax by the taxpayer to be cred-
ited or refunded without interest, in accordance with the provisions of
section 11-677 of this chapter.
(d) The number of full-time employees for the purposes of calculating
an industrial business tax credit shall be the average number of full-
time employees, calculated on a weekly basis, employed in the eligible
A. 10030 480
premises by the eligible business in the fifty-two week period imme-
diately following the earlier of (1) the date of the completion of the
relocation to eligible premises or (2) ninety days from the commencement
of the relocation to the eligible premises.
(e) The credit allowed under this subdivision must be taken by the
taxpayer in the taxable year in which such twelve-month period selected
by the taxpayer ends.
(f) For the purposes of calculating entire net income in the taxable
year that an industrial business tax credit is allowed, a taxpayer must
add back the amount of the credit allowed under this subdivision, to the
extent of any relocation costs deducted in the current taxable year or a
prior taxable year in calculating federal taxable income.
(g) The credit allowed under this subdivision shall not be granted for
an eligible business for more than one relocation, provided, however, an
industrial business tax credit shall not be granted if the eligible
business receives benefits pursuant to chapter six-B or six-C of title
twenty-two of the code of the preceding municipality, through a grant
program administered by the business relocation assistance corporation,
or through the New York city printers relocation fund grant.
(h) The commissioner of finance is authorized to promulgate rules and
regulations and to prescribe forms necessary to effectuate the purposes
of this subdivision.
18. (a) If a corporation is a partner in an unincorporated business
taxable under chapter five of this title, and is required to include in
entire net income its distributive share of income, gain, loss and
deductions of, or guaranteed payments from, such unincorporated busi-
ness, such corporation shall be allowed a credit against the tax imposed
by this subchapter equal to the lesser of the amounts determined in
subparagraphs one and two of this paragraph:
(1) The amount determined in this subparagraph is the product of (A)
the sum of (i) the tax imposed by chapter five of this title on the
unincorporated business for its taxable year ending within or with the
taxable year of the corporation and paid by the unincorporated business
and (ii) the amount of any credit or credits taken by the unincorporated
business under section 11-503 of this title, except the credit allowed
by subdivision (b) of such section, for its taxable year ending within
or with the taxable year of the corporation, to the extent that such
credits do not reduce such unincorporated business's tax below zero, and
(B) a fraction, the numerator of which is the net total of the corpo-
ration's distributive share of income, gain, loss and deductions of, and
guaranteed payments from, the unincorporated business for such taxable
year, and the denominator of which is the sum, for such taxable year, of
the net total distributive shares of income, gain, loss and deductions
of, and guaranteed payments to, all partners in the unincorporated busi-
ness for whom or which such net total, as separately determined for each
partner, is greater than zero.
(2) The amount determined in this subparagraph is the product of (A)
the excess of (i) the tax computed under clause one of subparagraph (a)
of paragraph E of subdivision one of this section, without allowance of
any credits allowed by this section, over (ii) the tax so computed,
determined as if the corporation had no such distributive share or guar-
anteed payments with respect to the unincorporated business, and (B) a
fraction, the numerator of which is four and the denominator of which is
eight and eighty-five one-hundredths, provided, however, that the
amounts computed in clauses (i) and (ii) of this subparagraph shall be
computed with the following modifications:
A. 10030 481
(I) such amounts shall be computed without taking into account any
carryforward or carryback by the partner of a net operating loss;
(II) if, prior to taking into account any distributive share or guar-
anteed payments from any unincorporated business or any net operating
loss carryforward or carryback, the entire net income of the partner is
less than zero, such entire net income shall be treated as zero; and
(III) if such partner's net total distributive share of income, gain,
loss and deductions of, and guaranteed payments from, any unincorporated
business is less than zero, such net total shall be treated as zero. The
amount determined in this subparagraph shall not be less than zero.
(b)(1) Notwithstanding anything to the contrary in paragraph (a) of
this subdivision, in the case of a corporation that, before the applica-
tion of this subdivision or any other credit allowed by this section, is
liable for the tax on entire net income under clause one of subparagraph
(a) of paragraph E of subdivision one of this section, the credit or the
sum of the credits that may be taken by such corporation for a taxable
year under this subdivision with respect to an unincorporated business
or unincorporated businesses in which it is a partner shall not exceed
the tax so computed, without allowance of any credits allowed by this
section, multiplied by a fraction the numerator of which is four and the
denominator of which is eight and eighty-five one-hundredths. If the
credit allowed under this subdivision or the sum of such credits exceeds
the product of such tax and such fraction, the amount of the excess may
be carried forward, in order, to each of the seven immediately succeed-
ing taxable years and, to the extent not previously taken, shall be
allowed as a credit in each of such years. Accordingly, the credit
determined for the taxable year under paragraph (a) of this subdivision
shall be taken before taking any credit carryforward pursuant to this
paragraph and the credit carryforward attributable to the earliest taxa-
ble year shall be taken before taking a credit carryforward attributable
to a subsequent taxable year.
(2) Notwithstanding anything to the contrary in paragraph (a) of this
subdivision, in the case of a corporation that, before the application
of this subdivision or any other credit allowed by this section, is
liable for the tax on entire net income plus certain salaries and other
compensation under clause three of subparagraph (a) of paragraph E of
subdivision one of this section, the maximum credit that may be taken in
any taxable year is the amount that will reduce the tax so computed,
without allowance of any credits allowed by this section, to zero. For
purposes of this paragraph each dollar of credit shall be applied so as
to reduce such tax for taxable years beginning before January first, two
thousand seven by sixty-six and thirty-eight one-hundredths cents; for
taxable years beginning on or after January first, two thousand seven
and before January first, two thousand eight by fifty-eight and eight
one-hundredths cents; for taxable years beginning on or after January
first, two thousand eight and before January first, two thousand nine by
forty-nine and seventy-eight one-hundredths cents; for taxable years
beginning on or after January first, two thousand nine and before Janu-
ary first, two thousand ten by forty-one and forty-eight one-hundredths
cents; and for taxable years beginning on or after January first, two
thousand ten by thirty-three and nineteen one-hundredths cents. If the
amount of credit allowed under this subdivision or the sum of such cred-
its exceeds the amount that may be taken against such tax, the amount of
the excess may be carried forward, in order, to each of the seven imme-
diately succeeding taxable years and, to the extent not previously
taken, shall be allowed as a credit in each of such years. Accordingly,
A. 10030 482
the credit determined for the taxable year under paragraph (a) of this
subdivision shall be taken before taking any credit carryforward pursu-
ant to this paragraph and the credit carryforward attributable to the
earliest taxable year shall be taken before taking a credit carryforward
attributable to a subsequent taxable year.
(3) No credit allowed under this subdivision may be taken in a taxable
year by a taxpayer that, in the absence of such credit, would be liable
for the tax computed on the basis of business and investment capital
under clause two of subparagraph (a) of paragraph E of subdivision one
of this section or the fixed-dollar minimum tax under clause four of
subparagraph (a) of paragraph E of subdivision one of this section. No
credit allowed under this subdivision may be taken against the tax
computed on the basis of subsidiary capital under subparagraph (b) of
paragraph E of subdivision one of this section.
(c) For corporations that file a report on a combined basis pursuant
to subdivision four of section 11-605 of this chapter, the credit
allowed by this subdivision shall be computed as if the combined group
were the partner in each unincorporated business from which any of the
members of such group had a distributive share or guaranteed payments,
provided, however, if more than one member of the combined group is a
partner in the same unincorporated business, for purposes of the calcu-
lation required in subparagraph one of paragraph (a) of this subdivi-
sion, the numerator of the fraction described in clause (B) of such
subparagraph one shall be the sum of the net total distributive shares
of income, gain, loss and deductions of, and guaranteed payments from,
the unincorporated business of all of the partners of the unincorporated
business within the combined group for which such net total, as sepa-
rately determined for each partner, is greater than zero, and the denom-
inator of such fraction shall be the sum of the net total distributive
shares of income, gain, loss and deductions of, and guaranteed payments
from, the unincorporated business of all partners in the unincorporated
business for whom or which such net total, as separately determined for
each partner, is greater than zero.
(d) The credit allowed by this subdivision shall not be allowed to a
partner in an unincorporated business with respect to any tax paid by
the unincorporated business under chapter five of this title for any
taxable year beginning before July first, nineteen hundred ninety-four.
(e) Notwithstanding any other provision of this subchapter, the credit
allowable under this subdivision shall be taken prior to the taking of
any other credit allowed by this section. Notwithstanding any other
provision of this subchapter, the application of this subdivision shall
not change the basis on which the taxpayer's tax is computed under para-
graph E of subdivision one of this section.
19. Lower Manhattan relocation and employment assistance credit. (a)
In addition to any other credit allowed by this section, a taxpayer that
has obtained the certifications required by chapter six-C of title twen-
ty-two of the code of the preceding municipality shall be allowed a
credit against the tax imposed by this chapter. The amount of the credit
shall be the amount determined by multiplying three thousand dollars by
the number of eligible aggregate employment shares maintained by the
taxpayer during the taxable year with respect to eligible premises to
which the taxpayer has relocated; provided, however, that no credit
shall be allowed for the relocation of any retail activity or hotel
services; provided, further, that no credit shall be allowed under this
subdivision to any taxpayer that has elected pursuant to subdivision (d)
of section 22-624 of the code of the preceding municipality to take such
A. 10030 483
credit against a gross receipts tax imposed under chapter eleven of this
title. For purposes of this subdivision, the terms "eligible aggregate
employment shares," "eligible premises," "relocate," "retail activity"
and "hotel services" shall have the meanings ascribed by section 22-623
of the code of the preceding municipality.
(b) The credit allowed under this subdivision with respect to eligible
aggregate employment shares maintained with respect to eligible premises
to which the taxpayer has relocated shall be allowed for the taxable
year of the relocation and for any of the twelve succeeding taxable
years during which eligible aggregate employment shares are maintained
with respect to eligible premises; provided that the credit allowed for
the twelfth succeeding taxable year shall be calculated by multiplying
the number of eligible aggregate employment shares maintained with
respect to eligible premises in the twelfth succeeding taxable year by
the lesser of one and a fraction the numerator of which is such number
of days in the taxable year of relocation less the number of days the
taxpayer maintained employment shares in eligible premises in the taxa-
ble year of relocation and the denominator of which is the number of
days in such twelfth taxable year during which such eligible aggregate
employment shares are maintained with respect to such premises.
(c) Except as provided in paragraph (d) of this subdivision, if the
amount of the credit allowable under this subdivision for any taxable
year exceeds the tax imposed for such year, the excess may be carried
over, in order, to the five immediately succeeding taxable years and, to
the extent not previously deductible, may be deducted from the taxpay-
er's tax for such years.
(d) The credits allowed under this subdivision, against the tax
imposed by this chapter for the taxable year of the relocation and for
the four taxable years immediately succeeding the taxable year of such
relocation, shall be deemed to be overpayments of tax by the taxpayer to
be credited or refunded, without interest, in accordance with the
provisions of section 11-677 of this chapter. For such taxable years,
such credits or portions thereof may not be carried over to any succeed-
ing taxable year.
(e) The credit allowable under this subdivision shall be deducted
after the credits allowed by subdivisions seventeen and eighteen of this
section, but prior to the deduction of any other credit allowed by this
section.
20. Film production credit. (a)(1) allowance of credit. A taxpayer
which is a qualified film production company, and which is subject to
tax under this subchapter, shall be allowed a credit against such tax,
pursuant to the provisions in paragraph (c) of this subdivision, to be
computed as provided in this subdivision.
(2) The amount of the credit shall be the product of five percent and
the qualified production costs paid or incurred in the production of a
qualified film, provided that the qualified production costs, excluding
post production costs, paid or incurred which are attributable to the
use of tangible property or the performance of services at a qualified
film production facility in the production of such qualified film equal
or exceed seventy-five percent of the production costs, excluding post
production costs, paid or incurred which are attributable to the use of
tangible property or the performance of services at any film production
facility within and without the city of Staten Island in the production
of such qualified film. However, if the qualified production costs,
excluding post production costs, which are attributable to the use of
tangible property or the performance of services at a qualified film
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production facility in the production of such qualified film are less
than three million dollars, then the portion of the qualified production
costs attributable to the use of tangible property or the performance of
services in the production of such qualified film outside of a qualified
film production facility shall be allowed only if the shooting days
spent in the city of Staten Island outside of a film production facility
in the production of such qualified film equal or exceed seventy-five
percent of the total shooting days spent within and without the city of
Staten Island outside of a film production facility in the production of
such qualified film. The credit shall be allowed for the taxable year in
which the production of such qualified film is completed.
(3) No qualified production costs used by a taxpayer either as the
basis for the allowance of the credit provided for under this subdivi-
sion or used in the calculation of the credit provided for under this
subdivision shall be used by such taxpayer to claim any other credit
allowed pursuant to this title.
(b) Definitions. As used in this subdivision, the following terms
shall have the following meanings:
(1) "Qualified production costs" means production costs only to the
extent such costs are attributable to the use of tangible property or
the performance of services within the city of New York directly and
predominantly in the production, including pre-production and post
production, of a qualified film.
(2) "Production costs" means any costs for tangible property used and
services performed directly and predominantly in the production, includ-
ing pre-production and post production, of a qualified film.
"Production costs" shall not include (i) costs for a story, script or
scenario to be used for a qualified film and (ii) wages or salaries or
other compensation for writers, directors, including music directors,
producers and performers, other than background actors with no scripted
lines. "Production costs" generally include technical and crew
production costs, such as expenditures for film production facilities,
or any part thereof, props, makeup, wardrobe, film processing, camera,
sound recording, set construction, lighting, shooting, editing and
meals.
(3) "Qualified film" means a feature-length film, television film,
television pilot and/or each episode of a television series, regardless
of the medium by means of which the film, pilot or episode is created or
conveyed. "Qualified film" shall not include (i) a documentary film,
news or current affairs program, interview or talk program, "how-to"
(i.e., instructional) film or program, film or program consisting prima-
rily of stock footage, sporting event or sporting program, game show,
award ceremony, film or program intended primarily for industrial,
corporate or institutional end-users, fundraising film or program,
daytime drama (i.e., daytime "soap opera"), commercials, music videos or
"reality" program, or (ii) a production for which records are required
under section 2257 of title 18, United States code, to be maintained
with respect to any performer in such production, reporting of books,
films, etc. with respect to sexually explicit conduct.
(4) "Film production facility" shall mean a building and/or complex of
buildings and their improvements and associated back-lot facilities in
which films are or are intended to be regularly produced and which
contain at least one sound stage.
(5) "Qualified film production facility" shall mean a film production
facility in the city of Staten Island, which contains at least one sound
A. 10030 485
stage having a minimum of seven thousand square feet of contiguous
production space.
(6) "Qualified film production company" shall mean a corporation which
is principally engaged in the production of a qualified film and
controls the qualified film during production.
(c) Application of credit. (1) The credit allowed under this subdivi-
sion for any taxable year shall not reduce the tax due for such year to
less than the amount prescribed in clause four of subparagraph (a) of
paragraph E of subdivision one of this section. Provided, however, that
if the amount of the credit allowable under this subdivision for any
taxable year reduces the tax to such amount, fifty percent of the excess
shall be treated as an overpayment of tax to be credited or refunded in
accordance with the provisions of section 11-677 of this chapter;
provided, however, the provisions of section 11-679 of this chapter
notwithstanding, no interest shall be paid thereon. The balance of such
credit not credited or refunded in such taxable year may be carried over
to the immediately succeeding taxable year and may be credited against
the taxpayer's tax for such year. The excess, if any, of the amount of
the credit over the tax for such succeeding year shall be treated as an
overpayment of tax to be credited or refunded in accordance with the
provisions of section 11-677 of this chapter. Provided, however, the
provisions of section 11-679 of this chapter notwithstanding, no inter-
est shall be paid thereon.
(2) Notwithstanding anything contained in this section to the contra-
ry, the credit provided by this subdivision shall be allowed against the
taxes authorized by this chapter for the taxable year after reduction by
all other credits permitted by this chapter.
21. Biotechnology credit. (a) (1) A taxpayer that is a qualified
emerging technology company, engages in biotechnologies, and meets the
eligibility requirements of this subdivision, shall be allowed a credit
against the tax imposed by this subchapter. The amount of credit shall
be equal to the sum of the amounts specified in subparagraphs three,
four, and five of this paragraph, subject to the limitations in subpara-
graph seven of this paragraph and paragraph (b) of this subdivision. For
the purposes of this subdivision, "qualified emerging technology compa-
ny" shall mean a company located in a city: (A) whose primary products
or services are classified as emerging technologies and whose total
annual product sales are ten million dollars or less; or (B) a company
that has research and development activities in city and whose ratio of
research and development funds to net sales equals or exceeds the aver-
age ratio for all surveyed companies classified as determined by the
National Science Foundation in the most recent published results from
its Survey of Industry Research and Development, or any comparable
successor survey as determined by the department, and whose total annual
product sales are ten million dollars or less. For the purposes of this
subdivision, the definition of research and development funds shall be
the same as that used by the National Science Foundation in the afore-
mentioned survey. For the purposes of this subdivision, "biotechnolo-
gies" shall mean the technologies involving the scientific manipulation
of living organisms, especially at the molecular and/or the sub-molecu-
lar genetic level, to produce products conducive to improving the lives
and health of plants, animals, and humans; and the associated scientific
research, pharmacological, mechanical, and computational applications
and services connected with these improvements. Activities included with
such applications and services shall include, but not be limited to,
alternative mRNA splicing, DNA sequence amplification, antigenetic
A. 10030 486
switching bioaugmentation, bioenrichment, bioremediation, chromosome
walking, cytogenetic engineering, DNA diagnosis, fingerprinting, and
sequencing, electroporation, gene translocation, genetic mapping, site-
directed mutagenesis, bio-transduction, bio-mechanical and bio-electri-
cal engineering, and bio-informatics.
(2) An eligible taxpayer shall (A) have no more than one hundred full-
time employees, of which at least seventy-five percent are employed in
the city, (B) have a ratio of research and development funds to net
sales, as referred to in section thirty-one hundred two-e of the public
authorities law, which equals or exceeds six percent during the calendar
year ending with or within the taxable year for which the credit is
claimed, and (C) have gross revenues, along with the gross revenues of
its "affiliates" and "related members" not exceeding twenty million
dollars for the calendar year immediately preceding the calendar year
ending with or within the taxable year for which the credit is claimed.
For the purposes of this subdivision, "affiliates" shall mean those
corporations that are members of the same affiliated group, as defined
in section fifteen hundred four of the internal revenue code, as the
taxpayer. For the purposes of this subdivision, the term "related
members" shall mean a person, corporation, or other entity, including an
entity that is treated as a partnership or other pass-through vehicle
for purposes of federal taxation, whether such person, corporation or
entity is a taxpayer or not, where one such person, corporation or enti-
ty, or set of related persons, corporations or entities, directly or
indirectly owns or controls a controlling interest in another entity.
Such entity or entities may include all taxpayers under chapters five,
eleven and seventeen of this title, and subchapters two and three of
this chapter. A controlling interest shall mean, in the case of a corpo-
ration, either thirty percent or more of the total combined voting power
of all classes of stock of such corporation, or thirty percent or more
of the capital, profits or beneficial interest in such voting stock of
such corporation; and in the case of a partnership, association, trust
or other entity, thirty percent or more of the capital, profits or bene-
ficial interest in such partnership, association, trust or other entity.
(3) An eligible taxpayer shall be allowed a credit for eighteen per
centum of the cost or other basis for federal income tax purposes of
research and development property that is acquired by the taxpayer by
purchase as defined in subdivision (d) of section one hundred seventy-
nine of the internal revenue code and placed in service during the
calendar year that ends with or within the taxable year for which the
credit is claimed. Provided, however, for the purposes of this paragraph
only, an eligible taxpayer shall be allowed a credit for such percentage
of the (A) cost or other basis for federal income tax purposes for prop-
erty used in the testing or inspection of materials and products, (B)
the costs or expenses associated with quality control of the research
and development, (C) fees for use of sophisticated technology facilities
and processes, and (D) fees for the production or eventual commercial
distribution of materials and products resulting from the activities of
an eligible taxpayer as long as such activities fall under activities
relating to biotechnologies. The costs, expenses and other amounts for
which a credit is allowed and claimed under this paragraph shall not be
used in the calculation of any other credit allowed under this subchap-
ter. For the purposes of this subdivision, "research and development
property" shall mean property that is used for purposes of research and
development in the experimental or laboratory sense. Such purposes shall
not be deemed to include the ordinary testing or inspection of materials
A. 10030 487
or products for quality control, efficiency surveys, management studies,
consumer surveys, advertising, promotions, or research in connection
with literary, historical or similar projects.
(4) An eligible taxpayer shall be allowed a credit for nine per centum
of qualified research expenses paid or incurred by the taxpayer in the
calendar year that ends with or within the taxable year for which the
credit is claimed. For the purposes of this subdivision, "qualified
research expenses" shall mean expenses associated with in-house research
and processes, and costs associated with the dissemination of the
results of the products that directly result from such research and
development activities; provided, however, that such costs shall not
include advertising or promotion through media. In addition, costs asso-
ciated with the preparation of patent applications, patent application
filing fees, patent research fees, patent examinations fees, patent post
allowance fees, patent maintenance fees, and grant application expenses
and fees shall qualify as qualified research expenses. In no case shall
the credit allowed under this subparagraph apply to expenses for liti-
gation or the challenge of another entity's intellectual property
rights, or for contract expenses involving outside paid consultants.
(5) An eligible taxpayer shall be allowed a credit for qualified high-
technology training expenditures as described in this subparagraph paid
or incurred by the taxpayer during the calendar year that ends with or
within the taxable year for which the credit is claimed.
(A) The amount of credit shall be one hundred percent of the training
expenses described in clause (C) of this subparagraph, subject to a
limitation of no more than four thousand dollars per employee per calen-
dar year for such training expenses.
(B) Qualified high-technology training shall include a course or
courses taken and satisfactorily completed by an employee of the taxpay-
er at an accredited, degree granting post-secondary college or universi-
ty in a city that (i) directly relates to biotechnology activities, and
(ii) is intended to upgrade, retrain or improve the productivity or
theoretical awareness of the employee. Such course or courses may
include, but are not limited to, instruction or research relating to
techniques, meta, macro, or micro-theoretical or practical knowledge
bases or frontiers, or ethical concerns related to such activities. Such
course or courses shall not include classes in the disciplines of
management, accounting or the law or any class designed to fulfill the
discipline specific requirements of a degree program at the associate,
baccalaureate, graduate or professional level of these disciplines.
Satisfactory completion of a course or courses shall mean the earning
and granting of credit or equivalent unit, with the attainment of a
grade of "B" or higher in a graduate level course or courses, a grade of
"C" or higher in an undergraduate level course or courses, or a similar
measure of competency for a course that is not measured according to a
standard grade formula.
(C) Qualified high-technology training expenditures shall include
expenses for tuition and mandatory fees, software required by the insti-
tution, fees for textbooks or other literature required by the institu-
tion offering the course or courses, minus applicable scholarships and
tuition or fee waivers not granted by the taxpayer or any affiliates of
the taxpayer, that are paid or reimbursed by the taxpayer. Qualified
high-technology expenditures do not include room and board, computer
hardware or software not specifically assigned for such course or cours-
es, late-charges, fines or membership dues and similar expenses. Such
qualified expenditures shall not be eligible for the credit provided by
A. 10030 488
this section unless the employee for whom the expenditures are disbursed
is continuously employed by the taxpayer in a full-time, full-year posi-
tion primarily located at a qualified site during the period of such
coursework and lasting through at least one hundred eighty days after
the satisfactory completion of the qualifying course-work. Qualified
high-technology training expenditures shall not include expenses for
in-house or shared training outside of a city higher education institu-
tion or the use of consultants outside of credit granting courses,
whether such consultants function inside of such higher education insti-
tution or not.
(D) If a taxpayer relocates from an academic business incubator facil-
ity partnered with an accredited post-secondary education institution
located within city, which provides space and business support services
to taxpayers, to another site, the credit provided in this subdivision
shall be allowed for all expenditures referenced in clause (C) of this
subparagraph paid or incurred in the two preceding calendar years that
the taxpayer was located in such an incubator facility for employees of
the taxpayer who also relocate from said incubator facility to such city
site and are employed and primarily located by the taxpayer in city.
Such expenditures in the two preceding years shall be added to the
amounts otherwise qualifying for the credit provided by this subdivision
that were paid or incurred in the calendar year that the taxpayer relo-
cates from such a facility. Such expenditures shall include expenses
paid for an eligible employee who is a full-time, full-year employee of
said taxpayer during the calendar year that the taxpayer relocated from
an incubator facility notwithstanding (i) that such employee was
employed full or part-time as an officer, staff-person or paid intern of
the taxpayer when such taxpayer was located at such incubator facility
or (ii) that such employee was not continuously employed when such
taxpayer was located at the incubator facility during the one hundred
eighty day period referred to in clause (C) of this subparagraph,
provided such employee received wages or equivalent income for at least
seven hundred fifty hours during any twenty-four month period when the
taxpayer was located at the incubator facility. Such expenditures shall
include payments made to such employee after the taxpayer has relocated
from the incubator facility for qualified expenditures if such payments
are made to reimburse an employee for expenditures paid by the employee
during such two preceding years. The credit provided under this para-
graph shall be allowed in any taxable year that the taxpayer qualifies
as an eligible taxpayer.
(E) For purposes of this subdivision the term "academic year" shall
mean the annual period of sessions of a post-secondary college or
university.
(F) For the purposes of this subdivision the term "academic incubator
facility" shall mean a facility providing low-cost space, technical
assistance, support services and educational opportunities, including
but not limited to central services provided by the manager of the
facility to the tenants of the facility, to an entity located in city.
Such entity's primary activity must be in biotechnologies, and such
entity must be in the formative stage of development. The academic incu-
bator facility and the entity must act in partnership with an accredited
post-secondary college or university located in city. An academic incu-
bator facility's mission shall be to promote job creation, entrepreneur-
ship, technology transfer, and provide support services to incubator
tenants, including, but not limited to, business planning, management
A. 10030 489
assistance, financial-packaging, linkages to financing services, and
coordinating with other sources of assistance.
(6) An eligible taxpayer may claim credits under this subdivision for
three consecutive years. In no case shall the credit allowed by this
subdivision to a taxpayer exceed two hundred fifty thousand dollars per
calendar year for eligible expenditures made during such calendar year.
(7) The credit allowed under this subdivision for any taxable year
shall not reduce the tax due for such year to less than the amount
prescribed in clause four of subparagraph (a) of paragraph E of subdivi-
sion one of this section. Provided, however, if the amount of credit
allowed under this subdivision for any taxable year reduces the tax to
such amount, any amount of credit not deductible in such taxable year
shall be treated as an overpayment of tax to be credited or refunded in
accordance with the provisions of section 11-677 of this chapter;
provided, however, that notwithstanding the provisions of section 11-679
of this chapter, no interest shall be paid thereon.
(8) The credit allowed under this subdivision shall only be allowed
for taxable years beginning on or after January first, two thousand ten
and before January first, two thousand nineteen.
(b) (1) The percentage of the credit allowed to a taxpayer under this
subdivision in any calendar year shall be:
(A) If the average number of individuals employed full time by a
taxpayer in the city during the calendar year that ends with or within
the taxable year for which the credit is claimed is at least one hundred
five percent of the taxpayer's base year employment, one hundred
percent, except that in no case shall the credit allowed under this
clause exceed two hundred fifty thousand dollars per calendar year.
Provided, however, the increase in base year employment shall not apply
to a taxpayer allowed a credit under this subdivision that was, (i)
located outside of the city, (ii) not doing business, or (iii) did not
have any employees, in the year preceding the first year that the credit
is claimed. Any such taxpayer shall be eligible for one hundred percent
of the credit for the first calendar year that ends with or within the
taxable year for which the credit is claimed, provided that such taxpay-
er locates in the city, begins doing business in the city or hires
employees in the city during such calendar year and is otherwise eligi-
ble for the credit pursuant to the provisions of this subdivision.
(B) If the average number of individuals employed full time by a
taxpayer in the city during the calendar year that ends with or within
the taxable year for which the credit is claimed is less than one
hundred five percent of the taxpayer's base year employment, fifty
percent, except that in no case shall the credit allowed under this
clause exceed one hundred twenty-five thousand dollars per calendar
year. In the case of an entity located in city receiving space and busi-
ness support services by an academic incubator facility, if the average
number of individuals employed full time by such entity in the city
during the calendar year in which the credit allowed under this subdivi-
sion is claimed is less than one hundred five percent of the taxpayer's
base year employment, the credit shall be zero.
(2) For the purposes of this subdivision, "base year employment" means
the average number of individuals employed full-time by the taxpayer in
the city in the year preceding the first calendar year that ends with or
within the taxable year for which the credit is claimed.
(3) For the purposes of this subdivision, average number of individ-
uals employed full-time shall be computed by adding the number of such
individuals employed by the taxpayer at the end of each quarter during
A. 10030 490
each calendar year or other applicable period and dividing the sum so
obtained by the number of such quarters occurring within such calendar
year or other applicable period.
(4) Notwithstanding anything contained in this section to the contra-
ry, the credit provided by this subdivision shall be allowed against the
taxes authorized by this chapter for the taxable year after reduction by
all other credits permitted by this chapter.
22. Beer production credit. (a) A taxpayer subject to tax under this
subchapter, that is registered as a distributor under article eighteen
of the tax law, and that produces sixty million or fewer gallons of beer
in this state in the taxable year, shall be allowed a credit against the
tax imposed by this subchapter in the amount specified in paragraph (b)
of this subdivision. Provided, however, that no credit shall be allowed
for any beer produced in excess of fifteen million five hundred thousand
gallons in the taxable year. Notwithstanding anything in this title to
the contrary, if a partnership is allowed a credit under subdivision (p)
of section 11-503 of this title, a taxpayer that is a partner in such
partnership shall not be allowed a credit under this subdivision for any
taxable year that includes the last day of the taxable year for which
the partnership is allowed such credit.
(b) The amount of the credit per taxpayer per taxable year for each
gallon of beer produced in the city of New York on or after January
first, two thousand seventeen shall be determined as follows:
(1) for the first five hundred thousand gallons of beer produced in
the city of New York in the taxable year, the credit shall equal twelve
cents per gallon; and
(2) for each gallon of beer produced in the city of New York in the
taxable year in excess of five hundred thousand gallons, the credit
shall equal three and eighty-six one-hundredths cents per gallon. In no
event shall the credit allowed under this subdivision for any taxable
year reduce the tax due for such year to less than the amount prescribed
in clause four of subparagraph (a) of paragraph E of subdivision one of
this section. However, if the amount of credit allowed under this subdi-
vision for any taxable year reduces the tax to such amount, any amount
of credit thus not deductible in such taxable year shall be treated as
an overpayment of tax to be credited or refunded in accordance with the
provisions of section 11-677 of this chapter; provided, however, that
notwithstanding the provisions of section 11-679 of this chapter, no
interest shall be paid thereon.
23. Credit for the provision of child care. In addition to any other
credit allowed under this section, a taxpayer whose application for a
credit authorized by section 11-144 of this title has been approved by
the department of finance shall be allowed a credit against the tax
imposed by this chapter. The amount of the credit shall be determined as
provided in such section. To the extent the amount of the credit allowed
by this subdivision exceeds the amount of tax due pursuant to this
subchapter, as calculated without such credit, such excess amount shall
be treated as an overpayment of tax to be credited or refunded in
accordance with the provisions of section 11-677 of this chapter,
provided, however, that notwithstanding the requirements of section
11-679 of this chapter to the contrary, no interest shall be paid there-
on.
§ 11-605 Reports. 1. Every corporation having an officer, agent or
representative within the city, shall annually on or before March
fifteenth, transmit to the commissioner of finance a report in a form
prescribed by the commissioner, except that a corporation which reports
A. 10030 491
on the basis of a fiscal year shall transmit its report within two and
one-half months after the close of its fiscal year, setting forth such
information as the commissioner of finance may prescribe and every
taxpayer which ceases to do business in the city or to be subject to the
tax imposed by this subchapter shall transmit to the commissioner of
finance a report on the date of such cessation or at such other time as
the commissioner may require covering each year or period for which no
report was theretofore filed. Every taxpayer shall also transmit such
other reports and such facts and information as the commissioner of
finance may require in the administration of this subchapter. The
commissioner of finance may grant a reasonable extension of time for
filing reports whenever good cause exists.
With respect to taxable years ending prior to December thirty-first,
nineteen hundred sixty-six, the returns required to be made and filed
pursuant to this section shall be made and filed on or before the
fifteenth day of the third month following the close of such taxable
year or September eleventh, nineteen hundred sixty-six, whichever is
later.
An automatic extension of six months for the filing of its annual
report shall be allowed any taxpayer if, within the time prescribed by
either of the preceding paragraphs, whichever is applicable, such
taxpayer files with the commissioner of finance an application for
extension in such form as the commissioner may prescribe by regulation
and pays on or before the date of such filing the amount properly esti-
mated as its tax.
2. Every report shall have annexed thereto a certification by the
president, vice-president, treasurer, assistant treasurer, chief
accounting officer or another officer of the taxpayer duly authorized so
to act to the effect that the statements contained therein are true. In
the case of an association, within the meaning of paragraph three of
section (a) of section seventy-seven hundred one of the internal revenue
code, a publicly-traded partnership treated as a corporation for
purposes of the internal revenue code pursuant to section seventy-seven
hundred four thereof and any business conducted by a trustee or trustees
wherein interest or ownership is evidenced by certificates or other
written instruments, such certification shall be made by any person duly
authorized so to act on behalf of such association, publicly-traded
partnership or business. The fact that an individual's name is signed on
a certification of the report shall be prima facie evidence that such
individual is authorized to sign and certify the report on behalf of the
corporation. Blank forms of reports shall be furnished by the commis-
sioner of finance, on application, but failure to secure such a blank
shall not release any corporation from the obligation of making any
report required by this subchapter.
2-a. The commissioner of finance may prescribe regulations and
instructions requiring returns of information to be made and filed in
conjunction with the reports required to be filed pursuant to this
section, relating to payments made to shareholders owning, directly or
indirectly, individually or in the aggregate, more than fifty percent of
the issued capital stock of the taxpayer, where such payments are treat-
ed as payments of interest in the computation of entire net income
reported on such reports.
3. If the amount of taxable income, alternative minimum taxable income
or other basis of tax for any year of any taxpayer, or of any sharehold-
er of any taxpayer which has elected to be taxed under subchapter s of
chapter one of the internal revenue code or of any shareholder of any
A. 10030 492
taxpayer with respect to which an election has been made to be treated
as a qualified subchapter s subsidiary under paragraph three of
subsection (b) of section thirteen hundred sixty-one of the internal
revenue code, as returned to the United States treasury department or
the New York state commissioner of taxation and finance is changed or
corrected by the commissioner of internal revenue or other officer of
the United States or the New York state commissioner of taxation and
finance or other competent authority, or where a renegotiation of a
contract or subcontract with the United States or the state of New York
results in a change in taxable income, alternative minimum taxable
income or other basis of tax, or where a recovery of a war loss results
in a computation or recomputation of any tax imposed by the United
States or the state of New York, or if a taxpayer or such shareholder of
a taxpayer, pursuant to subsection (d) of section sixty-two hundred
thirteen of the internal revenue code, executes a notice of waiver of
the restrictions provided in subsection (a) of said section, or if a
taxpayer, or such shareholder of a taxpayer, pursuant to subsection (f)
of section one thousand eighty-one of the tax law, executes a notice of
waiver of the restrictions provided in subsection (c) of said section,
such taxpayer shall report such changed or corrected taxable income,
alternative minimum taxable income or other basis of tax, or the results
of such renegotiation, or such computation, or recomputation, or such
execution of such notice of waiver and the changes or corrections of the
taxpayer's federal or New York state taxable income, alternative minimum
taxable income or other basis of tax on which it is based, within ninety
days, or one hundred twenty days, in the case of a taxpayer making a
combined report under this subchapter for such year, after such
execution or the final determination of such change or correction or
renegotiation, or such computation, or recomputation, or as required by
the commissioner of finance, and shall concede the accuracy of such
determination or state wherein it is erroneous. The allowance of a
tentative carryback adjustment based upon a net operating loss carryback
or net capital loss carryback pursuant to section sixty-four hundred
eleven of the internal revenue code shall be treated as a final determi-
nation for purposes of this subdivision. Any taxpayer filing an amended
return with such department shall also file within ninety days thereaft-
er an amended report with the commissioner of finance.
4. (a) Any taxpayer which owns or controls either directly or indi-
rectly substantially all the capital stock of one or more other corpo-
rations, or substantially all the capital stock of which is owned or
controlled either directly or indirectly by one or more other corpo-
rations or by interests which own or control either directly or indi-
rectly substantially all the capital stock of one or more other corpo-
rations, hereinafter referred to in this paragraph as "related
corporations", shall make a combined report covering any related corpo-
rations if there are substantial intercorporate transactions among the
related corporations, regardless of the transfer price for such inter-
corporate transactions. It is not necessary that there be substantial
intercorporate transactions between any one corporation and every other
related corporation. It is necessary, however, that there be substantial
intercorporate transactions between the taxpayer and a related corpo-
ration or, collectively, a group of such related corporations. The
report shall set forth such information as the commissioner of finance
may require.
In determining whether there are substantial intercorporate trans-
actions, the commissioner shall consider and evaluate all activities and
A. 10030 493
transactions of the taxpayer and its related corporations. Activities
and transactions that will be considered include, but are not limited
to: manufacturing, acquiring goods or property, or performing services,
for related corporations; selling goods acquired from related corpo-
rations; financing sales of related corporations; performing related
customer services using common facilities and employees for related
corporations; incurring expenses that benefit, directly or indirectly,
one or more related corporations; and transferring assets, including
such assets as accounts receivable, patents or trademarks from one or
more related corporations.
(1) No taxpayer may be permitted to make a report on a combined basis
covering any such other corporations where such taxpayer or any such
other corporation allocates in accordance with clause (A) of subpara-
graph six of paragraph (a) of subdivision three of section 11-604 of
this subchapter and such taxpayer or any such other corporation does not
so allocate.
(2) No taxpayer may be permitted to make a report on a combined basis
covering any such other corporations where such taxpayer or any such
other corporation allocates in accordance with subparagraph seven of
paragraph (a) of subdivision three of section 11-604 of this subchapter
and such taxpayer or any such other corporation does not so allocate.
(3) Except as provided in the first undesignated paragraph of this
subdivision, no combined report covering any corporation not a taxpayer
shall be required unless the commissioner of finance deems such a report
necessary, because of inter-company transactions or some agreement,
understanding, arrangement or transaction referred to in subdivision
five of this section, in order properly to reflect the tax liability
under this subchapter.
(4) A corporation organized under the laws of a country other than the
United States shall not be required or permitted to make a report on a
combined basis.
(5)(i) For purposes of this subparagraph, the term "closest control-
ling stockholder" means the corporation that indirectly owns or controls
over fifty percent of the voting stock of a captive REIT or captive RIC,
is subject to tax under this subchapter or otherwise required to be
included in a combined report under this subchapter, and is the fewest
tiers of corporations away in the ownership structure from the captive
REIT or captive RIC. The commissioner is authorized to prescribe by
regulation or published guidance the criteria for determining the clos-
est controlling stockholder.
(ii) A captive REIT or a captive RIC must be included in a combined
report with the corporation that directly owns or controls over fifty
percent of the voting stock of the captive REIT or captive RIC if that
corporation is subject to tax or required to be included in a combined
report under this subchapter.
(iii) If over fifty percent of the voting stock of a captive REIT or
captive RIC is not directly owned or controlled by a corporation that is
subject to tax or required to be included in a combined report under
this subchapter, then the captive REIT or captive RIC must be included
in a combined report with the corporation that is the closest control-
ling stockholder of the captive REIT or captive RIC. If the closest
controlling stockholder of the captive REIT or captive RIC is subject to
tax or otherwise required to be included in a combined report under this
subchapter, then the captive REIT or captive RIC must be included in a
combined report under this subchapter.
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(iv) If the corporation that directly owns or controls the voting
stock of the captive REIT or captive RIC is described in subparagraph
one, two or four of this paragraph as a corporation not permitted to
make a combined report, then the provisions in clause (iii) of this
subparagraph must be applied to determine the corporation in whose
combined report the captive REIT or captive RIC should be included. If,
under clause (iii) of this subparagraph, the corporation that is the
closest controlling stockholder of the captive REIT or captive RIC is
described in subparagraph one, two or four of this paragraph as a corpo-
ration not permitted to make a combined report, then that corporation is
deemed to not be in the ownership structure of the captive REIT or
captive RIC, and the closest controlling stockholder will be determined
without regard to that corporation.
(v) If a captive REIT owns the stock of a qualified REIT subsidiary,
as defined in paragraph two of subsection (i) of section eight hundred
fifty-six of the internal revenue code, then the qualified REIT subsid-
iary must be included in a combined report with the captive REIT.
(vi) If a captive REIT or a captive RIC is required under this subpar-
agraph to be included in a combined report with another corporation, and
that other corporation is also required to be included in a combined
report with another related corporation or corporations under this para-
graph, then the captive REIT or the captive RIC must be included in that
combined report with those corporations.
(vii) If a captive REIT or a captive RIC is not required to be
included in a combined report with another corporation under clause (ii)
or (iii) of this subparagraph, or in a combined return under the
provisions of subparagraph (v) of paragraph two of subdivision (f) of
section 11-646 of this chapter, then the captive REIT or captive RIC is
subject to the opening provisions of this paragraph and the provisions
of subparagraph three of this paragraph. The captive REIT or captive RIC
must be included in a combined report under this subchapter with another
corporation if either the substantial intercorporate transactions
requirement in the opening provisions of this paragraph or the inter-
company transactions or agreement, understanding, arrangement or trans-
action requirement of subparagraph three of this paragraph is satisfied
and more than fifty percent of the voting stock of the captive REIT or
the captive RIC and substantially all of the capital stock of that other
corporation are owned and controlled, directly or indirectly, by the
same corporation.
(b)(1)(i) In the case of a combined report the tax shall be measured
by the combined entire net income or combined capital of all the corpo-
rations included in the report, including any captive REIT or captive
RIC; provided, however, in no event shall the tax measured by combined
capital exceed the limitation provided for in paragraph F of subdivision
one of section 11-604 of this subchapter.
(ii) In the case of a captive REIT or captive RIC required under this
subdivision to be included in a combined report, entire net income must
be computed as required under subdivision seven, in the case of a
captive REIT, or subdivision eight, in the case of a captive RIC, of
section 11-603 of this chapter. However, the deduction under the inter-
nal revenue code for dividends paid by the captive REIT or captive RIC
to any member of the affiliated group that includes the corporation that
directly or indirectly owns over fifty percent of the voting stock of
the captive REIT or captive RIC shall not be allowed for taxable years
beginning on or after January first, two thousand nine. The term "affil-
iated group" means "affiliated group" as defined in section fifteen
A. 10030 495
hundred four of the internal revenue code, but without regard to the
exceptions provided for in subsection (b) of that section.
(2) In computing combined entire net income intercorporate dividends
shall be eliminated, in computing combined business and investment capi-
tal intercorporate stock holdings and intercorporate bills, notes and
accounts receivable and payable and other intercorporate indebtedness
shall be eliminated and in computing combined subsidiary capital inter-
corporate stockholdings shall be eliminated.
5. In case it shall appear to the commissioner of finance that any
agreement, understanding or arrangement exists between the taxpayer and
any other corporation or any person or firm, whereby the activity, busi-
ness, income or capital of the taxpayer within the city is improperly or
inaccurately reflected, the commissioner of finance is authorized and
empowered, in its discretion and in such manner as it may determine, to
adjust items of income, deductions and capital, and to eliminate assets
in computing any allocation percentage provided only that any income
directly traceable thereto be also excluded from entire net income, so
as equitably to determine the tax. Where (a) any taxpayer conducts its
activity or business under any agreement, arrangement or understanding
in such manner as either directly or indirectly to benefit its members
or stockholders, or any of them, or any person or persons directly or
indirectly interested in such activity or business, by entering into any
transaction at more or less than a fair price which, but for such agree-
ment, arrangement or understanding, might have been paid or received
therefor, or (b) any taxpayer, a substantial portion of whose capital
stock is owned either directly or indirectly by another corporation,
enters into any transaction with such other corporation on such terms as
to create an improper loss or net income, the commissioner of finance
may include in the entire net income of the taxpayer the fair profits,
which, but for such agreement, arrangement or understanding, the taxpay-
er might have derived from such transaction.
6. An action may be brought at any time by the corporation counsel at
the instance of the commissioner of finance to compel the filing of
reports due under this subchapter.
7. Reports shall be preserved for five years, and thereafter until the
commissioner of finance orders them to be destroyed.
8. Where the state tax commission changes or corrects a taxpayer's
sales and compensating use tax liability with respect to the purchase or
use of items for which a sales or compensating use tax credit against
the tax imposed by this chapter was claimed, the taxpayer shall report
such change or correction to the commissioner of finance within ninety
days of the final determination of such change or correction, or as
required by the commissioner of finance, and shall concede the accuracy
of such determination or state wherein it is erroneous. Any taxpayer
filing an amended return or report relating to the purchase or use of
such items shall also file within ninety days thereafter a copy of such
amended return or report with the commissioner of finance.
§ 11-606 Payment and lien of tax. 1. To the extent the tax imposed by
section 11-603 of this subchapter shall not have been previously paid
pursuant to section 11-608 of this subchapter,
(a) such tax, or the balance thereof, shall be payable to the commis-
sioner of finance in full at the time the report is required to be
filed, and
(b) such tax, or the balance thereof, imposed on any taxpayer which
ceases to do business in the city or to be subject to the tax imposed by
this subchapter shall be payable to the commissioner of finance at the
A. 10030 496
time the report is required to be filed; all other taxes of any such
taxpayer, which pursuant to the provisions of this section would other-
wise be payable subsequent to the time such report is required to be
filed, shall nevertheless be payable at such time.
If the taxpayer, within the time prescribed by section 11-605 of this
subchapter, shall have applied for an automatic extension of time to
file its annual report and shall have paid to the commissioner of
finance on or before the date such application is filed an amount prop-
erly estimated as provided by said section, the only amount payable in
addition to the tax shall be interest at the underpayment rate set by
the commissioner of finance pursuant to section 11-687 of this chapter,
or, if no rate is set, at the rate of seven and one-half percent per
annum upon the amount by which the tax, or the portion thereof payable
on or before the date the report was required to be filed, exceeds the
amount so paid. For purposes of this paragraph:
(1) an amount so paid shall be deemed properly estimated if it is
either: (A) not less than ninety percent of the tax as finally deter-
mined, computed without regard to any credit allowable under subdivision
eleven of section 11-604 of this subchapter, or (B) not less than the
tax shown, computed without regard to any credit allowable under subdi-
vision eleven of section 11-604 of this subchapter, on the taxpayer's
report for the preceding taxable year, if such preceding year was a
taxable year of twelve months; and
(2) the time when a report is required to be filed shall be determined
without regard to any extension of time for filing such report.
2. The commissioner of finance may grant a reasonable extension of
time for payment of any tax imposed by this subchapter under such condi-
tions as it deems just and proper.
3. Subdivision one of this section shall apply to a taxpayer which has
a right to a credit pursuant to subdivision eleven of section 11-604 of
this subchapter, except that the tax, or balance thereof, payable to the
commissioner of finance in full pursuant to subdivision one of this
section, at the time the report is required to be filed, shall be calcu-
lated and paid at such time as if the credit provided for in subdivision
eleven of section 11-604 of this subchapter were not allowed.
§ 11-607 Declaration of estimated tax. 1. Every taxpayer subject to
the tax imposed by section 11-603 of this subchapter shall make a decla-
ration of its estimated tax for the current privilege period, containing
such information as the commissioner of finance may prescribe by regu-
lations or instructions, if such estimated tax can reasonably be
expected to exceed one thousand dollars.
2. The term "estimated tax" means the amount which a taxpayer esti-
mates to be the tax imposed by section 11-603 of this subchapter for the
current privilege period, less the amount which it estimates to be the
sum of any credits allowable against the tax other than the credit
allowable under subdivision eleven of section 11-604 of this subchapter.
3. In the case of a taxpayer which reports on the basis of a calendar
year, a declaration of estimated tax shall be filed on or before June
fifteenth of the current privilege period, except that if the require-
ments of subdivision one are first met:
(a) after May thirty-first and before September first of such
current privilege period, the declaration shall be filed on or before
September fifteenth, or
(b) after August thirty-first and before December first of such
current privilege period, the declaration shall be filed on or before
December fifteenth.
A. 10030 497
4. A taxpayer may amend a declaration under regulations of the
commissioner of finance.
5. If, on or before February fifteenth of the succeeding year in the
case of a taxpayer which reports on the basis of a calendar year, a
taxpayer files its report for the year for which the declaration is
required, and pays therewith the balance, if any, of the full amount
of the tax shown to be due on the report,
(a) such report shall be considered as its declaration if no decla-
ration is required to be filed during the calendar or fiscal year for
which the tax was imposed, but is otherwise required to be filed on or
before December fifteenth pursuant to subdivision three of this
section, and
(b) such report shall be considered as the amendment permitted by
subdivision four of this section to be filed on or before December
fifteenth if the tax shown on the report is greater than the estimated
tax shown on a declaration previously made.
6. This section shall apply to privilege periods of twelve months
other than a calendar year by the substitution of the months of such
fiscal year for the corresponding months specified in this section.
7. If the privilege period for which a tax is imposed by section
11-603 of this subchapter is less than twelve months, every taxpayer
required to make a declaration of estimated tax for such privilege
period shall make such a declaration in accordance with regulations of
the commissioner of finance.
8. The commissioner of finance may grant a reasonable extension of
time, not to exceed three months, for the filing of any declaration
required pursuant to this section, on such terms and conditions as it
may require.
§ 11-608 Payments on account of estimated tax. 1. Every taxpayer
subject to the tax imposed by section 11-603 of this subchapter shall
pay with the report required to be filed for the preceding privilege
period, if any, or with an application for extension of the time and
filing such report, an amount equal to twenty-five per centum of the
preceding year's tax, computed without regard to the credit provided for
in subdivision twelve of section 11-604 of this subchapter, if such
preceding year's tax exceeded one thousand dollars.
2. The estimated tax with respect to which a declaration for such
privilege period is required shall be paid, in the case of a taxpayer
which reports on the basis of a calendar year, as follows:
(a) If the declaration is filed on or before June fifteenth, the esti-
mated tax shown thereon, after applying thereto the amount, if any, paid
during the same privilege period pursuant to subdivision one of this
section, shall be paid in three equal installments. One of such
installments shall be paid at the time of the filing of the declaration,
one shall be paid on the following September fifteenth, and one on the
following December fifteenth.
(b) If the declaration is filed after June fifteenth and not after
September fifteenth of such privilege period, and is not required to be
filed on or before June fifteenth of such period, the estimated tax
shown on such declaration, after applying thereto the amount, if any,
paid during the same privilege period pursuant to subdivision one of
this section, shall be paid in two equal installments. One of such
installments shall be paid at the time of the filing of the declaration
and one shall be paid on the following December fifteenth.
(c) If the declaration is filed after September fifteenth of such
privilege period, and is not required to be filed on or before September
A. 10030 498
fifteenth of such privilege period, the estimated tax shown on such
declaration, after applying thereto the amount, if any, paid in respect
to such privilege period pursuant to subdivision one of this section,
shall be paid in full at the time of the filing of the declaration.
(d) If the declaration is filed after the time prescribed therefor, or
after the expiration of any extension of time therefor, paragraphs (b)
and (c) of this subdivision shall not apply, and there shall be paid at
the time of such filing all installments of estimated tax payable at or
before such time, and the remaining installments shall be paid at the
times at which, and in the amounts in which, they would have been paya-
ble if the declaration had been filed when due.
3. If any amendment of a declaration is filed, the remaining install-
ments, if any, shall be ratably increased or decreased, as the case may
be, to reflect any increase or decrease in the estimated tax by reason
of such amendment, and if any amendment is made after September
fifteenth of the privilege period, any increase in the estimated tax by
reason thereof shall be paid at the time of making such amendment.
4. Any amount paid shall be applied after payment as a first install-
ment against the estimated tax of the taxpayer for the current privilege
period shown on the declaration required to be filed pursuant to section
11-607 of this subchapter or, if no declaration of estimated tax is
required to be filed by the taxpayer to such section, any such amount
shall be considered a payment on account of the tax shown on the report
required to be filed by the taxpayer for such privilege period.
5. Notwithstanding the provisions of section 11-679 of this chapter or
of section three-a of the general municipal law, if an amount paid
pursuant to subdivision one of this section exceeds the tax shown on the
report required to be filed by the taxpayer for the privilege period
during which the amount was paid, interest shall be allowed and paid on
the amount by which the amount so paid pursuant to such subdivision
exceeds such tax, at the overpayment rate set by the commissioner of
finance pursuant to section 11-687 of this chapter, or, if no rate is
set, at the rate of four percent per annum from the date of payment of
the amount so paid pursuant to such subdivision to the fifteenth day of
the third month following the close of the privilege period, provided,
however, that no interest shall be allowed or paid under this subdivi-
sion if the amount thereof is less than one dollar or if such interest
becomes payable solely because of a carryback of a net operating loss in
a subsequent privilege period.
6. As used in this section, "the preceding year's tax" means the tax
imposed upon the taxpayer by section 11-603 of this subchapter for the
preceding calendar or fiscal year, or, for purposes of computing the
first installment of estimated tax when an application has been filed
for extension of the time for filing the report required to be filed for
such preceding calendar or fiscal year, the amount properly estimated
pursuant to section 11-607 of this subchapter as the tax imposed upon
the taxpayer for such calendar or fiscal year.
7. This section shall apply to a privilege period of less than twelve
months in accordance with regulations of the commissioner of finance.
8. The provisions of this section shall apply to privilege periods of
twelve months other than a calendar year by the substitution of the
months of such fiscal year for the corresponding months specified in
such provisions.
9. The commissioner of finance may grant a reasonable extension of
time, not to exceed six months, for payment of any installment of esti-
mated tax required pursuant to this section, on such terms and condi-
A. 10030 499
tions as the commissioner may require including the furnishing of a bond
or other security by the taxpayer in an amount not exceeding twice the
amount for which any extension of time for payment is granted, provided
however that interest at the underpayment rate set by the commissioner
of finance pursuant to section 11-687 of this chapter, or, if no rate is
set, at the rate of seven and one-half percent per annum for the period
of the extension shall be charged and collected on the amount for which
any extension of time for payment is granted under this subdivision.
10. A taxpayer may elect to pay any installment of estimated tax prior
to the date prescribed in this section for payment thereof.
11. The portion of an overpayment attributable to a credit allowable
pursuant to subdivision eleven of section 11-604 of this subchapter may
not be credited against any payment due under this section.
§ 11-609 Collection of taxes. Every foreign corporation, other than
a moneyed corporation, subject to the provisions of this subchapter,
except a corporation having authority to do business by virtue of
section thirteen hundred five of the business corporation law, shall
file in the department of state a certificate of designation in its
corporate name, signed and acknowledged by its president or a vice-pre-
sident or its secretary or treasurer, under its corporate seal, desig-
nating the secretary of state as its agent upon whom process in any
action provided for by this subchapter may be served within this state,
and setting forth an address to which the secretary of state shall mail
a copy of any such process against the corporation which may be served
upon the secretary of state. In case any such corporation shall have
failed to file such certificate of designation, it shall be deemed to
have designated the secretary of state as its agent upon whom such proc-
ess against it may be served; and until a certificate of designation
shall have been filed, the corporation shall be deemed to have directed
the secretary of state to mail copies of process served upon him or her
to the corporation at its last known office address within or without
the state. When a certificate of designation has been filed by such
corporation the secretary of state shall mail copies of process there-
after served upon the secretary of state to the address set forth in
such certificate. Any such corporation, from time to time, may change
the address to which the secretary of state is directed to mail copies
of process, by filing a certificate to that effect executed, signed and
acknowledged in like manner as a certificate of designation as provided
in this section. Service of process upon any such corporation or upon
any corporation having authority to do business by virtue of section
thirteen hundred five of the business corporation law, in any action
commenced at any time pursuant to the provisions of this subchapter, may
be made by either: (a) personally delivering to and leaving with the
secretary of state, a deputy secretary of state or with any person
authorized by the secretary of state to receive such service duplicate
copies thereof at the office of the department of state in the city of
Albany, in which event the secretary of state shall forthwith send by
registered mail, return receipt requested, one of such copies to the
corporation at the address designated by it or at its last known office
address within or without the state, or (b) personally delivering to and
leaving with the secretary of state, a deputy secretary of state or with
any person authorized by the secretary of state to receive such service,
a copy thereof at the office of the department of state in the city of
Albany and by delivering a copy thereof to, and leaving such copy with,
the president, vice-president, secretary, assistant secretary, treasur-
er, assistant treasurer, or cashier of such corporation, or the officer
A. 10030 500
performing corresponding functions under another name, or a director or
managing agent of such corporation, personally without the state. Proof
of such personal service without the state shall be filed with the clerk
of the court in which the action is pending within thirty days after
such service, and such service shall be complete ten days after proof
thereof is filed.
§ 11-610 Limitations of time. The provisions of the civil practice
law and rules relative to the limitation of time enforcing a civil reme-
dy shall not apply to any proceeding or action taken to levy, appraise,
assess, determine or enforce the collection of any tax or penalty
prescribed by this subchapter, provided, however, that as to real estate
in the hands of persons who are owners thereof who would be purchasers
in good faith but for such tax or penalty and as to the lien on real
estate of mortgages held by persons who would be holders thereof in good
faith but for such tax or penalty, all such taxes and penalties shall
cease to be a lien on such real estate as against such purchasers or
holders after the expiration of ten years from the date such taxes
became due and payable. The limitations provided for in this section
shall not apply to any transfer from a corporation to a person or corpo-
ration with intent to avoid payment of any taxes, or where with like
intent the transfer is made to a grantee corporation, or any subsequent
grantee corporation, controlled by such grantor or which has any commu-
nity of interest with it, either through stock ownership or otherwise.
SUBCHAPTER 3
FINANCIAL CORPORATION TAX
PART 1
TAX ON STATE BANKS, TRUST COMPANIES, FINANCIAL
CORPORATIONS AND SAVINGS AND LOAN ASSOCIATIONS
§ 11-611 Definitions. When used in this part:
1. The term "financial corporation" means every corporation doing a
banking business as defined in this section, other than a national bank-
ing association, a trust company all of the capital stock of which is
owned by not less than twenty savings banks organized under a law of
this state, or a corporation taxable under subchapter two of this chap-
ter, and shall include the mortgage facilities corporation created by
chapter five hundred sixty-four of the laws of nineteen hundred fifty-
six and any corporation eighty percent or more of whose voting stock is
beneficially owned by a corporation or corporations subject to article
three or article three-a of the banking law or a national banking asso-
ciation or associations, provided the corporation whose voting stock is
so owned is principally engaged in business which might be lawfully
conducted by a corporation subject to article three of the banking law
or a national banking association.
2. The word "paid", for the purpose of the deductions and credits
under this part, means "paid or accrued" or "paid or incurred," and the
terms "paid or incurred" and "paid or accrued" shall be construed
according to the method of accounting upon the basis of which the net
income is computed, under this part. The term "received," for the
purpose of the computation of net income under this part means "received
or accrued" and the term "received or accrued" shall be construed
according to the method of accounting upon the basis of which the net
income is computed under this part.
A. 10030 501
3. The word "dividend" means any distribution made by a corporation to
its shareholders or members, out of its earnings or profits, whether in
cash, or in property other than stock of the corporation.
4. The words "doing a banking business" means doing such business as a
corporation may be created to do under articles three, five, five-a, and
six of the banking law, or doing any business which a corporation is
authorized by such articles to do.
5. The words "foreign banker doing a banking business" in the city,
include every foreign corporation doing a banking business in the city,
except a national banking association.
6. The words "savings and loan association" mean every corporation
doing such business as a corporation may be created to do under article
ten of the banking law, including every federal savings and loan associ-
ation organized under authority of the United States.
§ 11-612 Tax based on net income; imposition; minimum tax; new incor-
porations; dissolution; consolidations; mergers, etc.
1. For the privilege of doing business in the city:
(a) Every bank and savings and loan association organized under the
authority of this state;
(b) Every trust company incorporated, organized or formed under, by or
pursuant to a law of the state, other than a trust company all of the
stock of which is owned by not less than twenty savings banks organized
under a law of the state, and every domestic corporation authorized to
do a trust company's business solely or in connection with any other
business, under a general or special law of the state;
(c) Every other domestic financial corporation;
(d) Every incorporated foreign banker doing a banking business and
every other foreign financial corporation; and
(e) Every federal savings and loan association located within the
city, shall annually pay a tax at the rate of four and one-half per
centum except that for the years nineteen hundred seventy-one and those
following, the rate shall be five and sixty-three one hundredths per
centum, to be computed as provided in this part, upon the basis of its
net income for each calendar year, beginning with the calendar year
nineteen hundred sixty-six, next preceding the date when such tax
becomes due, if the taxpayer is required to file a declaration of esti-
mated tax and to make payments on account of such estimated tax as
provided by section 11-636 of this subchapter, upon the basis of its net
income for the calendar year with respect to which such declaration is
required to be filed.
2. Every such corporation for the privilege of doing business in the
city and every federal savings and loan association located in the city
shall be subject to a minimum tax of not less than ten dollars and not
less than one mill except that for the years nineteen hundred seventy-
one and those following such minimum tax shall be not less than twelve
and one-half dollars and not less than one and one-quarter mills upon
each dollar of such a part of its issued capital stock on the last day
of the calendar year preceding that in which such tax becomes due, at
its face value, as the gross income of such corporation derived from
business carried on within the city during such calendar year, bears to
its gross income derived from all business, both within and without the
city, during said year, but if such a corporation has stock without par
value, such stock shall be taken at its actual or market value, and not
less than five dollars per share, as may be determined by the commis-
sioner of finance; except that a savings bank and savings and loan asso-
ciation shall be subject to a minimum tax of not less than an amount
A. 10030 502
equal to two per centum of the amount of interest or dividends credited
by it to depositors or shareholders during the calendar year preceding
that in which such tax becomes due except that for the years nineteen
hundred seventy-one and those following such minimum tax shall be not
less than twelve and one-half dollars and not less than an amount equal
to two and one-half per centum of the amount of interest or dividends
credited by it to depositors or shareholders during the calendar year
preceding that in which such tax becomes due, provided that, in deter-
mining such amount each interest or dividend credit to a depositor or
shareholder shall be deemed to be the interest or dividend actually
credited or the interest or dividend which would have been credited if
it had been computed and credited at the rate of two per centum per
annum whichever is less and except also that in the case of a trust
company or savings bank incorporated in the calendar year preceding that
in which its first return under this part shall be due and after the
thirtieth day of June in such year, the minimum tax, computed as in this
subdivision provided, shall be reduced one-twelfth for each month, or
major portion thereof, subsequent to said thirtieth day of June during
which such trust company or savings bank did not exercise the privilege
of doing business in the city.
3. For the privilege of doing business in the city, every such domes-
tic corporation, except trust companies and savings banks, shall be
subject to a tax for the calendar year in which its organization certif-
icate is filed, and, for the privilege of doing business in the city,
every such foreign corporation shall be subject to a tax for the calen-
dar year in which it first does business in the city, and, every federal
savings and loan association located within the city shall be subject to
a tax for the calendar year in which it first becomes located within the
city, computed in the same manner and at the same rate as the minimum
tax under subdivision two of this section, except that the income form-
ing the basis for proration shall be the income for such calendar year,
and the issued capital stock shall be taken as of the last day of such
calendar year; provided, however, that the tax so computed shall be
reduced one-twelfth for each month, or major portion thereof, in such
calendar year, during which such corporation was not doing business in
the city, or, if a federal savings and loan association, was not located
in the city, and in no event shall the tax be less than ten dollars
except that for the year nineteen hundred seventy-one and those follow-
ing, in no event shall the tax be less than twelve and one-half dollars.
4. For the privilege of doing business in the city, every such trust
company and savings bank which shall become incorporated between the
thirty-first day of December and the succeeding first day of July, shall
be subject to a tax for such period, computed in the same manner and at
the same rate as the minimum tax under subdivision two of this section,
except that the income forming the basis for proration shall be the
income for such period; and the issued capital stock, or interest cred-
ited to depositors of a savings bank, shall be taken as of the last day
of such period; provided, however, that the tax so computed shall be
reduced one-half and an additional one-twelfth for each month, or major
portion thereof, in such period, during which such trust company or
savings bank was not doing business in the city, and in no event shall
the tax be less than ten dollars except that for the year nineteen
hundred seventy-one and those following, in no event shall the tax be
less than twelve and one-half dollars.
5. For the privilege of doing business in the city, every such corpo-
ration, except trust companies and savings banks, which shall be
A. 10030 503
dissolved between the thirty-first day of December and the succeeding
second day of September, and shall not become merged or consolidated
with another corporation taxable under this part and, every such foreign
corporation which shall cease to do business in the city during the same
period, and every federal savings and loan association which ceases to
be located in the city during the same period, and shall not become
merged or consolidated with another corporation taxable under this part,
shall pay a tax for the period from the thirty-first day of December up
to the time of dissolution, ceasing to do business in the city, or ceas-
ing to be located in the city, as the case may be, equal to that which
would have been payable had it not been dissolved, ceased to do business
in the city, or ceased to be located in the city, except that such tax
shall be reduced one-third and an additional one-twelfth for each month,
or major portion thereof, prior to such succeeding second day of Septem-
ber, during which such corporation was not doing business in the city,
or was not located in the city, and in no event shall the tax be less
than ten dollars except that for the year nineteen hundred seventy-one
and those following, in no event shall the tax be less than twelve and
one-half dollars. If such dissolution or cessation occurs between the
fifteenth day of March and the second day of September, and if such
corporation shall have filed its return on or before the fifteenth day
of March as required by section 11-633 of this subchapter, it may file a
claim for refund as provided in section 11-678 of this chapter, showing
any reduction in tax to which it may be entitled as provided in the
preceding sentence; and if it shall be made to appear that the amount of
tax due is less than the amount as computed on the basis of the original
return, the commissioner of finance shall adjust the computation of tax
accordingly. If the amount of tax as so adjusted shall be less than the
amount theretofore paid, the excess shall be refunded by the commission-
er of finance as provided in subdivision one of section 11-677 of this
chapter.
6. Every such trust company and savings bank, which shall be
dissolved, and shall not become merged or consolidated with another
corporation taxable under this part, shall, if dissolution takes place
between the thirtieth day of June and the succeeding first day of Janu-
ary, be subject to a tax, for that part of such period in which it had
been doing business, computed in the same manner and at the same rate as
the minimum tax under subdivision two of this section, except that the
income forming the basis for proration shall be the income for the
calendar year in which such dissolution occurs; and the issued capital
stock, or interest credited to depositors of a savings bank, shall be
taken as of the date of dissolution; provided, however, that the tax so
computed shall be reduced one-half and an additional one-twelfth for
each month, or major portion thereof, between the date of dissolution
and the succeeding first day of January. If dissolution occurs between
the thirty-first day of December and the succeeding sixteenth day of
March, such trust company and savings bank shall be subject to the same
tax that would have been due from it on or before the fifteenth day of
March had it not been dissolved, except that such tax shall be reduced
one-twelfth for each month, or major portion thereof, from the date of
dissolution to the succeeding first day of July, and shall be for the
period beginning on the preceding first day of July and ending on the
date of dissolution. In no event shall the tax under this subdivision
be less than ten dollars except that for the year nineteen hundred
seventy-one and those following, in no event shall the tax under this
subdivision be less than twelve and one-half dollars.
A. 10030 504
7. In the case of a consolidation or merger of taxpayers, or in case a
national bank taxable under part two of this subchapter shall be consol-
idated or merged with a taxpayer under this part, or in case of a series
of such transactions, there shall be added to the net income of the
taxpayer resulting from such consolidations or mergers the net income of
the taxpayers which are consolidated or merged for the period for which
the taxpayer resulting from such consolidation or merger is required to
render any return under this part, and if such resulting taxpayer is a
savings bank or savings and loan association, there shall be added to
the interest or dividends credited by it to depositors or shareholders
the amount of interest or dividends credited to depositors or sharehold-
ers during such period by the taxpayers which are consolidated or
merged, except that net income, interest or dividends shall not be
included if they have already been used as the basis for a tax under
this part, and the tax payable on filing such return shall be based upon
the entire net income reported therein or upon the entire amount of
interest or dividends so reported, as the case may be. The acquisition
by a taxpayer, directly or indirectly, of the assets or franchises of
another taxpayer or national bank shall be deemed a merger for the
purposes of this section.
8. The tax imposed by this part shall be for the calendar year next
preceding the year in which it becomes due; except that with respect to
corporations subject to a tax imposed under subdivision three, four,
five or six of this section, the tax shall be for the period therein
specified, and except that with respect to corporations required to file
a declaration of estimated tax and to make payments on account of such
estimated tax as provided by section 11-636 of this subchapter, all
payments of tax within a calendar year, whether computed on the basis of
net income for the current calendar year or on the basis of net income
for the preceding calendar year, shall be for the calendar year in which
the payments are required to be made.
9. In the event that it shall be finally determined by a court of
competent jurisdiction that the taxes imposed on national banking asso-
ciations by part two of this subchapter are unconstitutional or invalid
for the reason that they are not in conformity with the provisions of
section fifty-two hundred nineteen of the United States revised stat-
utes, then, in lieu of the taxes imposed by the provisions of this part,
every corporation that otherwise would have been subject to tax under
this part shall be subject to the tax imposed under subchapter two as of
July thirteenth, nineteen hundred sixty-six, and all of the provisions
of subchapter two, unless clearly inappropriate, shall be applicable
except subdivision four of section 11-603 of this chapter; and, in such
event, any payments made, reports or returns filed or any act of the
commissioner of finance or of a taxpayer purportedly under this subchap-
ter shall be treated as though made, filed or done pursuant to subchap-
ter two.
10. Cross reference. For years for which tax is imposed, see section
11-613 of this part.
§ 11-613 Years for which imposed. 1. The tax imposed by section
11-612 of this part is imposed for each calendar year included within
the period beginning January first, nineteen hundred sixty-six and
ending December thirty-first, nineteen hundred seventy-two.
2. Cross reference. For tax imposed for years or periods subsequent to
nineteen hundred seventy-two, see part four of this subchapter.
§ 11-614 Ascertainment of gain or loss. 1. For the purpose of ascer-
taining the gain derived or loss sustained from the sale or other dispo-
A. 10030 505
sition of property, real, personal or mixed, the basis shall be the cost
thereof, or the inventoried value if the inventory is made in accordance
with section 11-617 of this part.
2. Notwithstanding subdivision one of this section, with respect to
gain derived from the sale or other disposition of any property acquired
prior to January first, nineteen hundred sixty-six, except stock in
trade of the taxpayer or other property of a kind which would properly
be included in the inventory of the taxpayer if on hand at the close of
the taxable year, or property held by the taxpayer primarily for sale to
customers in the ordinary course of its trade or business, and accounts
or notes receivable acquired in the ordinary course of trade or business
from the sale of such stock in trade or property, or for services
rendered, net income shall not include:
(a) That portion of the gain included in determining net income pursu-
ant to subdivision one of this section with respect to each such proper-
ty, which exceeds:
(b) The amount of gain that would be included in determining net
income pursuant to subdivision one of this section with respect to each
such property if the basis of such property on the date of sale or other
disposition were equal to its fair market value on January first, nine-
teen hundred sixty-six, plus or minus all adjustments to basis made with
respect to each such property in computing net income for periods on or
after January first, nineteen hundred sixty-six provided that the total
adjustment to net income provided by this subdivision shall not exceed
the amount of the taxpayer's net gain from the sale or other disposition
of all such property, as determined pursuant to subdivision one of this
section.
3. In the case of any bond, with respect to which a deduction for
amortizable bond premium is allowable under subdivision nine of section
11-621 of this part, the basis for determining gain or loss shall be
reduced by the total amount of such deductions so allowable.
§ 11-615 Exchange of property. Upon the sale or exchange of property
the entire amount of the gain or loss, determined under section 11-614
of this part, shall be recognized, except as provided in this section:
1. No gain or loss shall be recognized if common stock in a corpo-
ration is exchanged solely for common stock in the same corporation, or
if preferred stock in a corporation is exchanged solely for preferred
stock in the same corporation;
2. No gain or loss shall be recognized if stock or securities in a
corporation, a party to a reorganization are, in pursuance of the plan
or reorganization, exchanged solely for stock or securities in such
corporation or in another corporation a party to such reorganization;
3. No gain or loss shall be recognized if a taxpayer, a party to a
reorganization, exchanges property, in pursuance of the plan of reorgan-
ization, solely for stock or securities in another corporation a party
to such reorganization; and
4. No gain or loss shall be recognized if property is transferred to a
corporation by a taxpayer solely in exchange for stock or securities in
such corporation, and immediately after the exchange such taxpayer is in
control of the corporation; but in the case of an exchange by a taxpayer
and one or more other corporations or persons this subdivision shall
apply only if the amount of the stock and securities received by each is
substantially in proportion to its interest in the property prior to the
exchange.
5. If property, as a result of its destruction in whole or in part,
theft or seizure, or an exercise of the power of requisition or condem-
A. 10030 506
nation, or the threat of imminence thereof, is compulsorily or involun-
tarily converted into property similar or related in service or use to
the property so converted, or into money which is forthwith in good
faith, under regulations prescribed by the commissioner of finance,
expended in the acquisition of other property similar or related in
service or use to the property so converted, or in the acquisition of
control of a corporation owning such other property, or in the estab-
lishment of a replacement fund, no gain or loss shall be recognized. If
any part of the money is not so expended, the gain, if any, shall be
recognized, but in an amount not in excess of the money which is not so
expended.
6. If there is distributed, in pursuance of a plan of reorganization,
to a taxpayer shareholder in a corporation a party to the reorganiza-
tion, stock or securities in such corporation or in another corporation
a party to the reorganization, without the surrender by such taxpayer
shareholder of stock or securities in such a corporation, no gain to the
distributee from the receipt of such stock or securities shall be recog-
nized.
7. If an exchange would be within the provisions of subdivision one,
two, or four of this section if it were not for the fact that the prop-
erty received in exchange consists not only of property permitted by
such subdivision to be received without the recognition of gain, but
also of other property or money, then the gain, if any, to the recipient
shall be recognized, but in an amount not in excess of the sum of such
money and the fair market value of such other property.
8. If an exchange would be within the provisions of subdivision three
of this section if it were not for the fact that the property received
in exchange consists not only of stock or securities permitted by such
subdivision to be received without the recognition of gain, but also of
other property or money, then:
(a) If the taxpayer receiving such other property or money distributes
it in pursuance of the plan of reorganization, no gain to the taxpayer
shall be recognized from the exchange, but
(b) If the taxpayer receiving such other property or money does not
distribute it in pursuance of the plan of reorganization, the gain, if
any, to the taxpayer shall be recognized, but in an amount not in excess
of the sum of such money and the fair market value of such other proper-
ty so received, which is not so distributed.
9. If an exchange would be within the provisions of subdivision one,
two, three, or four of this section if it were not for the fact that the
property received in exchange consists not only of property permitted by
such subdivision to be received without the recognition of gain or loss,
but also of other property or money, then no loss from the exchange
shall be recognized.
10. As used in this section:
(a) The term "reorganization" means (i) a merger or consolidation,
including the acquisition by one corporation of at least a majority of
the voting stock and at least a majority of the total number of shares
of all other classes of stock of another corporation, or substantially
all the properties of another corporation, or (ii) a transfer by a
corporation of all or a part of its assets to another corporation if
immediately after the transfer the transferor or its stockholders or
both are in control of the corporation to which the assets are trans-
ferred, or (iii) a recapitalization, or (iv) a mere change in identity,
form or place of organization, however effected;
A. 10030 507
(b) The term "a party to a reorganization" includes a corporation
resulting from a reorganization and includes both corporations in the
case of an acquisition by one corporation of at least a majority of the
voting stock and at least a majority of the total number of shares of
all other classes of stock of another corporation; and
(c) The term "control" means the ownership of at least eighty per
centum of the voting stock and at least eighty per centum of the total
number of shares of all other classes of stock of the corporation.
11. No gain or loss shall be recognized upon the receipt by a taxpayer
of property distributed in complete liquidation of a corporation. For
the purposes of this subdivision a distribution shall be considered to
be in complete liquidation only if:
(a) the taxpayer receiving such property was, on the date of the
adoption of the plan of liquidation, and has continued to be at all
times until the receipt of the property, the owner of stock, in such
corporation, possessing at least eighty per centum of the total combined
voting power of all classes of stock entitled to vote and the owner of
at least eighty per centum of the total number of shares of all other
classes of stock, except non-voting stock which is limited and preferred
as to dividends, and was at no time on or after the date of the adoption
of the plan of liquidation and until the receipt of the property the
owner of a greater percentage of any class of stock than the percentage
of such class owned at the time of the receipt of the property; and
either:
(b) the distribution is by such corporation in complete cancellation
or redemption of all its stock, and the transfer of all the property
occurs within the base year; in such case the adoption by the sharehold-
ers of the resolution under which is authorized the distribution of all
the assets of the corporation in complete cancellation or redemption of
all its stock, shall be considered an adoption of a plan of liquidation,
even though no time for the completion of the transfer of the property
is specified on such resolution; or
(c) such distribution is one of a series of distributions by such
corporation in complete cancellation or redemption of all its stock in
accordance with a plan of liquidation under which the transfer of all
the property under the liquidation is to be completed within three years
from the close of the year during which is made the first of the series
of distributions under the plan, except that if such transfer is not
completed within such period, or if the taxpayer does not continue qual-
ified under paragraph (a) of this subdivision until the completion of
such transfer, no distribution under the plan shall be considered a
distribution in complete liquidation.
If such transfer of all the property does not occur within the year,
the commissioner of finance may require of the taxpayer such bond, or
waiver of the statute of limitations on assessment and collection, or
both, as the commissioner may deem necessary to insure, if the transfer
of the property is not completed within such three year period, or if
the taxpayer does not continue qualified under paragraph (a) of this
subdivision until the completion of such transfer, the assessment and
collection of all taxes then imposed under this part for such year or
subsequent years, to the extent attributable to property so received. A
distribution otherwise constituting a distribution in complete liqui-
dation within the meaning of this paragraph shall not be considered as
not constituting such a distribution merely because it does not consti-
tute a distribution or liquidation within the meaning of the corporate
law under which the distribution is made; and for the purposes of this
A. 10030 508
paragraph a transfer of property of such corporation to the taxpayer
shall not be considered as not constituting a distribution, or one of a
series of distributions, in complete cancellation or redemption of all
the stock of such corporation, merely because the carrying out of the
plan involves: (1) the transfer under the plan to the taxpayer by such
corporation of property, not attributable to shares owned by the taxpay-
er, upon an exchange described in subdivision three of this section, and
(2) the complete cancellation or redemption under the plan, as a result
of exchanges described in subdivision two of this section, of the shares
not owned by the taxpayers.
§ 11-616 Exchange of property when no gain or loss is realized. When
property is exchanged for other property and no gain or loss is realized
under the provisions of the preceding section, the property received
shall be treated as taking the place of the property exchanged therefor.
Where no gain or loss is realized under the provisions of subdivision
eleven of section 11-615 of this part, the basis of the property
received shall be the same as it would be in the hands of the transferor
determined in accordance with the provisions of section 11-614 of this
part.
§ 11-617 Inventory. Whenever in the opinion of the commissioner of
finance the use of inventories is necessary in order clearly to deter-
mine the income of any taxpayer, inventory shall be taken by such
taxpayer upon such basis as the commissioner of finance may prescribe,
conforming as nearly as may be to the best accounting practice in the
banking business most clearly reflecting the income.
§ 11-618 Net income defined. The term "net income" means the gross
income of a taxpayer less the deductions allowed by this part.
§ 11-619 Computation of net income. The net income shall be computed
in accordance with the method of accounting regularly employed in keep-
ing the books of such taxpayer; but if no such method of accounting has
been so employed, or if the method employed does not clearly reflect the
income, the computation shall be made upon such basis and in such manner
as in the opinion of the commissioner of finance does clearly reflect
the income. In determining net income, war losses, taxation of property
recovered, and basis of property shall be treated in substantially the
same manner as such losses, recoveries and basis are treated under the
applicable provisions of section thirteen hundred thirty-one of the
internal revenue code.
§ 11-620 Gross income defined. 1. The term "gross income" includes
gains, profits and income derived from the business, of whatever kind
and in whatever form paid, including gains, profits or income from deal-
ings in property, whether real or personal, or gains, profits or income
received as compensation for services, as interest, rents, commissions,
brokerage or other fees, or otherwise in carrying on such business,
including all dividends received on stocks and all interest received
from federal, state, municipal or other bonds.
2. If the gross income of a taxpayer is derived from business carried
on both within and without the city, "gross income" means that propor-
tion thereof which is derived from business carried on within the city,
to be allocated and determined on the basis of separate accounting for
each office or branch or, at the election of the taxpayer, under rules
and regulations prescribed by the commissioner of finance.
3. "Gross income" of a savings bank shall include the amount received
by it in any taxable year as a distribution in liquidation of the mutual
savings bank fund.
A. 10030 509
§ 11-621 Deductions. In computing net income there shall be allowed as
deductions:
1. All the ordinary and necessary expenses paid or incurred during the
year in carrying on business, including a reasonable allowance for sala-
ries or other compensation for personal services actually rendered, and
including rentals or other payments required to be made as a condition
to the continued use or possession for business purposes of property to
which the taxpayer has not taken or is not taking title or in which such
taxpayer has no equity.
2. All interest paid or accrued during the year on indebtedness.
3. Taxes, other than taxes on income or profits paid or accrued within
the year, imposed, first, by the authority of the United States, or of
any of its possessions, or, second, by the authority of any state, or
territory, or any county, school district, municipality, or other taxing
subdivisions of any state or territory, not including those assessed
against local benefits of a kind tending to increase the value of the
property assessed, or, third, by the authority of any foreign govern-
ment.
4. Losses sustained during the year and not compensated for by insur-
ance or otherwise, if incurred in business; unless in order to clearly
reflect the income the losses should in the opinion of the commissioner
of finance be accounted for as of a different period. No deduction shall
be allowed for any loss claimed to have been sustained in any sale or
other disposition of shares of stock or securities where it appears that
within thirty days before or after the date such sale or other disposi-
tion the taxpayer has acquired substantially identical property, and the
property so acquired is held by the taxpayer for any period after such
sale or other disposition, unless such claim is made with respect to a
transaction made in the ordinary course of business. If such acquisi-
tion is to the extent of part only of substantially identical property,
only a proportionate part of the loss shall be disallowed.
5. Debts ascertained to be worthless and charged off within the year;
or in the discretion of the commissioner of finance a reasonable addi-
tion to a reserve for bad debts. When satisfied that a debt is recovera-
ble only in part, the commissioner of finance may allow such debt to be
charged off in part.
6. A reasonable allowance for the exhaustion, wear and tear of proper-
ty used in business, including a reasonable allowance for obsolescence.
In the case of any such property acquired before January first, nineteen
hundred sixty-six, the amount of such deduction shall be equal to the
deduction properly taken for such property in reporting the tax due
pursuant to the former article nine-b of the tax law. With respect to
property such as described in subdivision twelve of this section, this
deduction may be computed and allowed as provided therein.
7. If the gross income be derived from business carried on within and
without the city, the deductions allowed by this section shall be allo-
cated and determined on the basis of separate accounting for each office
or branch or, at the election of the taxpayer, under rules and regu-
lations to be prescribed by the commissioner of finance.
8. In the case of any taxpayer who establishes or maintains a pension
trust to provide for the payment of reasonable pensions to its employ-
ees, there shall be allowed as a deduction, in addition to the contrib-
utions to such trust during the taxable year to cover the pension
liability accruing during the year, allowed as a deduction under subdi-
vision one of this section, a reasonable amount transferred or paid into
such trust during the taxable year in excess of such contributions, but
A. 10030 510
only if such amount (a) has not theretofore been allowable as a
deduction, and (b) is apportioned in equal parts over a period of ten
consecutive years beginning with the year in which the transfer or
payment is made or, under regulations of the commissioner of finance,
covers not more than one-tenth of the total pension liability with
respect to services rendered prior to such taxable year; provided that
said deduction shall be allowable only with respect to a taxable year,
whether the year of the transfer or payment or a subsequent year, of the
taxpayer ending within or with a taxable year of the trust with respect
to which the trust, by reason of its purposes or activities, is exempt
from federal income tax.
9. The amount of the amortizable bond premium on a bond for the year
shall be allowed as a deduction as hereinafter provided. In computing
such deduction: (a) the amount of the bond premium shall be determined
with reference to the amount of the basis, for determining loss on sale
or exchange, of such bond, and with reference to the amount payable on
maturity or on earlier call date, with adjustments proper to reflect
unamortized bond premium with respect to the bond, for the period prior
to July thirteenth, nineteen hundred sixty-six with respect to the
taxpayer with respect to such bond, and (b) the amortizable bond premium
of the year shall be the amount of the bond premium attributable to such
year. Accordingly, such determination shall be made in accordance with
the method of amortizing bond premium regularly employed by the holder
of such bond, if such method is reasonable, and in all other cases in
accordance with regulations of the commissioner of finance prescribing
reasonable methods of amortizing bond premium. This subdivision shall
apply only if the taxpayer shall so elect, in accordance with regu-
lations of the commissioner of finance, and such election shall be made
separately with respect to (1) bonds, the interest of which is wholly
taxable, and (2) bonds, the interest of which is wholly or partially tax
exempt, for purposes of the income tax imposed by chapter one of the
internal revenue code. If such election is made with respect to any bond
of the taxpayer described in clauses one or two of this subdivision, it
shall also apply to all bonds in the same class held by the taxpayer at
the beginning of the first year to which the election applies and to all
such bonds thereafter acquired by it and shall be binding for all subse-
quent years with respect to all such bonds of the taxpayer, unless upon
the application by the taxpayer, the commissioner of finance permits the
taxpayer, subject to such conditions as the commissioner of finance
deems necessary, to revoke such election. As used in this subdivision
the term "bond" means any bond, debenture, note or certificate or other
evidence of indebtedness, issued by any corporation and bearing inter-
est, including any like obligation issued by a government or political
subdivision thereof, with interest coupons or in registered form, but
does not include any such obligation which constitutes stock in trade of
the taxpayer or any such obligation of a kind which would properly be
included in the inventory of the taxpayer if on hand at the close of the
year, or any such obligation held by the taxpayer primarily for sale to
customers in the ordinary course of its trade or business.
10. In the case of a savings bank and savings and loan association,
amounts paid or credited to depositors or holders of accounts as inter-
est or dividends on their deposits or withdrawable accounts, if such
amounts are withdrawable on demand subject only to customary notice of
intention to withdraw.
11. A savings bank and savings and loan association may deduct in any
taxable year the amount of the repayment of any loan or advance from the
A. 10030 511
mutual savings bank fund in computing its net income and the amount of
interest or dividends subject to the minimum tax under subdivision three
of section 11-612 of this part.
12. (a) At the election of the taxpayer there shall be deducted from
gross income, or if gross income is derived from business carried on
within and without this city, from the portion thereof allocated within
the city, depreciation with respect to any property such as described in
paragraph (b) of this subdivision, not exceeding twice the depreciation
allowed with respect to the same property for federal income tax
purposes.
(b) Such deduction shall be allowed only with respect to tangible
property which is depreciable pursuant to section one hundred sixty-sev-
en of the internal revenue code, having a situs in this city and used in
the taxpayer's business, (i) constructed, reconstructed or erected after
December thirty-first, nineteen hundred sixty-five, pursuant to a
contract which was on or before December thirty-first, nineteen hundred
sixty-seven, and at all times thereafter, binding on the taxpayer or,
property, the physical construction, reconstruction or erection of which
began on or before December thirty-first, nineteen hundred sixty-seven
or which began after such date pursuant to an order placed on or before
December thirty-first, nineteen hundred sixty-seven, and then only with
respect to that portion of the basis thereof which is properly attribut-
able to such construction, reconstruction or erection after December
thirty-first, nineteen hundred sixty-five, or (ii) acquired after Decem-
ber thirty-first, nineteen hundred sixty-five, pursuant to a contract
which was, on or before December thirty-first, nineteen hundred sixty-
seven, and at all times thereafter, binding on the taxpayer or pursuant
to an order placed on or before December thirty-first, nineteen hundred
sixty-seven, by purchase as defined in section one hundred seventy-nine
(d) of the internal revenue code, if the original use of such property
commenced with the taxpayer, commenced in this city and commenced after
December thirty-first, nineteen hundred sixty-five, or (iii) acquired,
constructed, reconstructed or erected subsequent to December thirty-
first, nineteen hundred sixty-seven, if such acquisition, construction,
reconstruction or erection is pursuant to a plan of the taxpayer which
was in existence December thirty-first, nineteen hundred sixty-seven and
not thereafter substantially modified, and such acquisition,
construction, reconstruction or erection would qualify under the rules
in paragraph four, five or six of subsection (h) of section forty-eight
of the internal revenue code provided all references in such paragraphs
four, five and six to the dates October nine, nineteen hundred sixty-six
and October ten, nineteen hundred sixty-six shall be read as December
thirty-first, nineteen hundred sixty-seven. A taxpayer shall be allowed
a deduction under clause (i), (ii) or (iii) of this paragraph only if
the tangible property shall be delivered or the construction, recon-
struction or erection shall be completed on or before December thirty-
first, nineteen hundred sixty-nine, except in the case of tangible prop-
erty which is acquired, constructed, reconstructed or erected pursuant
to a contract which was, on or before December thirty-first, nineteen
hundred sixty-seven, and at all times thereafter, binding on the taxpay-
er. Provided, however, for any taxable year beginning on or after Janu-
ary first, nineteen hundred sixty-eight, a taxpayer shall not be allowed
a deduction under paragraph (a) of this subdivision with respect to
tangible personal property leased by it to any other person or corpo-
ration. Accordingly, any contract or agreement to lease or rent or for a
license to use such property shall be considered a lease. With respect
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to property which the taxpayer uses itself for purposes other than leas-
ing for part of a taxable year and leases for a part of a taxable year,
the taxpayer shall be allowed a deduction under paragraph (a) of this
subdivision in proportion to the part of the year it uses such property.
(c) If the deduction allowable for any taxable year pursuant to this
subdivision exceeds the taxpayer's net income computed without the
allowance of such deduction and without the allowance of any deduction
pursuant to subdivision six of this section with references to the same
property, the excess may be carried over to the following taxable year
or years and may be deducted in computing net income for such year or
years.
(d) In any taxable year when property is sold or otherwise disposed
of, with respect to which a deduction has been allowed pursuant to this
subdivision, the gain or loss thereon shall be computed by adjusting the
basis of such property to reflect the deductions so allowed, and if the
taxpayer's gross income is derived from business carried on both within
and without the city, shall be allocated within the city. Provided,
however, that no loss shall be recognized for the purposes of this para-
graph with respect to a sale or other disposition of property to a
person whose acquisition thereof is not a purchase as defined in section
one hundred seventy-nine (d) of the internal revenue code.
§ 11-622 Items not deductible. In computing net income no deduction
shall in any case be allowed in respect of:
(a) Any amount paid out for new buildings or for permanent improve-
ments or betterments made to increase the value of any property.
(b) Any amount expended in restoring property or in making good the
exhaustion thereof for which an allowance is or has been made.
PART 2
TAX ON NATIONAL BANKING ASSOCIATIONS
AND PRODUCTION CREDIT ASSOCIATIONS
§ 11-623 Imposition of tax. 1. Pursuant to the authority conferred by
section fifty-two hundred nineteen of the United States revised statutes
and in conformity with the provisions contained in subdivision c of
clause one of such section, every national banking association organized
under authority of the United States and located within the city, shall
annually pay a tax, measured by its net income, to be computed, as
provided in this part, at the rate of four and one-half per centum
except that for the year nineteen hundred seventy-one and those follow-
ing the rate shall be five and sixty-three one hundredths per centum,
upon the basis of its net income for the calendar year next preceding
the date when such tax becomes due. Such tax shall be for the calendar
year next preceding the year in which it becomes due; except that with
respect to national banking associations required to file a declaration
of estimated tax and to make payments on account of such estimated tax
in accordance with the provisions of section 11-636 of this subchapter,
all payments of tax within a calendar year, whether computed on the
basis of net income for the current calendar year or on the basis of net
income for the preceding calendar year, shall be for the calendar year
in which the payments are required to be made. If, however, such a
national banking association shall be dissolved between the thirty-first
day of December and the succeeding second day of September, and shall
not become merged or consolidated with a corporation taxable under part
one of this subchapter, it shall pay a tax for the period from the thir-
ty-first day of December up to the time of dissolution equal to that
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which would have been payable had it not been dissolved, except that
such tax shall be reduced by one-third and an additional one-twelfth for
each month, or major portion thereof, prior to such succeeding second
day of September, during which such corporation was so dissolved. If
such dissolution occurs between the fifteenth day of March and the
second day of September, and if such corporation shall have filed its
return on or before the fifteenth day of March as required by sections
11-630 and 11-633 of this subchapter, it may file a claim for refund as
provided in section 11-678 of this chapter, showing any reduction in tax
to which it may be entitled as provided by this section; and if it shall
be made to appear that the amount of tax due is less than the amount as
computed on the basis of the original return, the commissioner of
finance shall adjust the computation of tax accordingly. If the amount
of tax as so adjusted shall be less than the amount theretofore paid,
the excess shall be refunded by the commissioner of finance as provided
in subdivision one of section 11-677 of this chapter.
2. In the event that the taxes imposed by this part shall be finally
determined to be unconstitutional or invalid for the reason that they do
not conform with the provisions of section fifty-two hundred nineteen of
the United States revised statutes, then, in lieu of the taxes imposed
by the provisions of this part, every national banking association and
every production credit association that otherwise would have been
subject to tax under this part shall be subject to the tax imposed under
subchapter two as of July thirteenth, nineteen hundred sixty-six, and
all of the provisions of subchapter two, unless clearly inappropriate,
shall be applicable except subdivision four of section 11-603 of this
chapter; and, in such event, any payments made, reports or returns filed
or any act of the commissioner of finance or of a taxpayer purportedly
under this subchapter shall be treated as though made, filed or done
pursuant to subchapter two.
3. Cross reference. For years for which tax is imposed, see section
11-624 of this part.
§ 11-624 Years for which imposed. 1. The tax imposed by section
11-623 of this part is imposed for each calendar year included within
the period beginning January first, nineteen hundred sixty-six and
ending December thirty-first, nineteen hundred seventy-two.
2. Cross reference. For tax imposed for years or periods subsequent to
nineteen hundred seventy-two, see part four of this subchapter.
§ 11-625 Ascertainment of gain or loss; exchange of property. 1.
For the purpose of ascertaining the gain derived or loss sustained from
the sale or other disposition of property, real, personal or mixed, the
basis shall be the cost thereof, or the inventoried value if the inven-
tory is made in accordance with section 11-626 of this part.
2. Notwithstanding subdivision one of this section, with respect to
gain derived from the sale or other disposition of any property acquired
prior to January first, nineteen hundred sixty-six, except stock in
trade of the taxpayer or other property of a kind which would properly
be included in the inventory of the taxpayer if on hand at the close of
the taxable year, or property held by the taxpayer primarily for sale to
customers in the ordinary course of its trade or business and accounts
or notes receivable acquired in the ordinary course of trade or business
from the sale of such stock in trade or property, or for services
rendered, net income shall not include:
(a) That portion of the gain included in determining net income pursu-
ant to subdivision one of this section with respect to each such proper-
ty which exceeds:
A. 10030 514
(b) The amount of gain, if any, that would be included in determining
net income pursuant to subdivision one of this section with respect to
each such property if the basis of such property on the date of sale or
other disposition were equal to its fair market value on January first,
nineteen hundred sixty-six, plus or minus all adjustments to basis made
with respect to each such property in computing net income for periods
on or after January first, nineteen hundred sixty-six; provided that the
total adjustment to net income provided by this subdivision shall not
exceed the amount of the taxpayer's net gain from the sale or other
disposition of all such property, as determined pursuant to subdivision
one of this section.
3. Upon the sale or exchange of property the amount of the gain or
loss shall be determined in the manner prescribed by section 11-615 of
this subchapter and the basis of such property shall be determined in
the manner prescribed by section 11-616 of this subchapter.
4. In the case of any bond, with respect to which a deduction for
amortizable bond premium is allowable under paragraph (i) of subdivision
one of section 11-629 of this part, the basis for determining gain or
loss shall be reduced by the total amount of such deductions so allow-
able.
§ 11-626 Inventory. Whenever in the opinion of the commissioner of
finance the use of inventories is necessary in order clearly to deter-
mine the income of any taxpayer, inventory shall be taken by such
taxpayer upon such basis as the commissioner of finance may prescribe,
conforming as nearly as may be to the best accounting practice in the
banking business and most clearly reflecting the income.
§ 11-627 Net income defined; computation. The term "net income"
means the gross income of a taxpayer less the deductions allowed by this
part. The net income shall be computed in accordance with the method of
accounting regularly employed in keeping the books of such taxpayer; but
if no such method of accounting has been so employed, or if the method
employed does not clearly reflect the income, the computation shall be
made upon such basis and in such manner as in the opinion of the commis-
sioner of finance does clearly reflect the income. In determining net
income, war losses, taxation of property recovered, and basis of proper-
ty shall be treated in substantially the same manner as such losses,
recoveries and basis are treated under the applicable provisions of
section thirteen hundred thirty-one of the internal revenue code.
§ 11-628 Gross income defined. 1. The term "gross income" includes
gains, profit and income derived from the business, of whatever kind and
in whatever form paid, including gains, profits or income from dealings
in property, whether real or personal, or gains, profits, or income
received as compensation for services, as interest, rents, commissions,
brokerage or other fees, or otherwise in carrying on such business,
including all dividends received on stocks and all interest received
from federal, state, municipal or other bonds.
2. If the gross income of such an association is derived from business
carried on both within and without the city, "gross income" means that
proportion thereof which is derived from business carried on within the
city, to be allocated and determined on the basis of separate accounting
for each office or branch or, at the election of the taxpayer, under
rules and regulations prescribed by the commissioner of finance.
§ 11-629 Deductions. 1. In computing net income there shall be
allowed as deductions:
(a) All the ordinary and necessary expenses paid or incurred during
the year in carrying on business, including a reasonable allowance for
A. 10030 515
salaries or other compensation for personal services actually rendered,
and including rentals or other payments required to be made as a condi-
tion to the continued use or possession for business purposes of proper-
ty to which the taxpayer has not taken or is not taking title or in
which such taxpayer has no equity;
(b) All interest paid or accrued during the year on indebtedness;
(c) Taxes, other than taxes on income or profits paid or accrued with-
in the year, imposed, first, by the authority of the United States, or
of any of its possessions, or, second, by the authority of any state, or
territory, or any county, school district, municipality, or other taxing
subdivisions of any state or territory, not including those assessed
against local benefits of a kind tending to increase the value of the
property assessed, or, third, by the authority of any foreign govern-
ment;
(d) Losses sustained during the year and not compensated for by insur-
ance or otherwise, if incurred in business; unless in order to clearly
reflect the income the losses should in the opinion of the commissioner
of finance be accounted for as of a different period. No deduction
shall be allowed for any loss claimed to have been sustained in any sale
or other disposition of shares of stock or securities where it appears
that within thirty days before or after the date of such sale or other
disposition the taxpayer has acquired substantially identical property,
and the property so acquired is held by the taxpayer for any period
after such sale or other disposition, unless such claim is made with
respect to a transaction made in the ordinary course of business. If
such acquisition is to the extent of part only of substantially identi-
cal property, only a proportionate part of the loss shall be disallowed;
(e) Debts ascertained to be worthless and charged off within the year;
or in the discretion of the commissioner of finance a reasonable addi-
tion to a reserve for bad debts. When satisfied that a debt is recover-
able only in part, the commissioner of finance may allow such debt to be
charged off in part;
(f) A reasonable allowance for the exhaustion, wear and tear of prop-
erty used in business, including a reasonable allowance for obsoles-
cence. In the case of any such property acquired before January first,
nineteen hundred sixty-six, the amount of such deduction shall be equal
to the deduction properly taken for such property in reporting the tax
due. With respect to property such as described in paragraph (j) of
this subdivision, this deduction may be computed and allowed as provided
therein;
(g) If the gross income be derived from business carried on within and
without the city, the deductions allowed by this section shall be allo-
cated and determined on the basis of separate accounting for each office
or branch or, at the election of the taxpayer, under rules and regu-
lations to be prescribed by the commissioner of finance;
(h) In the case of any taxpayer, who establishes or maintains a
pension trust to provide for the payment of reasonable pensions to its
employees, there shall be allowed as a deduction, in addition to the
contributions to such trust during the taxable years, to cover the
pension liability accruing during the year, allowed as a deduction under
paragraph (a) of this subdivision, a reasonable amount transferred or
paid into such trust during the taxable year in excess of such contrib-
utions, but only if such amount: (1) has not theretofore been allowable
as a deduction, and (2) is apportioned in equal parts over a period of
ten consecutive years beginning with the year in which the transfer of
payment is made; provided that said deduction shall be allowable only
A. 10030 516
with respect to a taxable year, whether the year of the transfer or
payment or a subsequent year, of the taxpayer ending within or with a
taxable year of the trust with respect to which the trust, by reason of
its purposes or activities is exempt from federal income tax;
(i) The amount of the amortizable bond premium on a bond for the year
shall be allowed as a deduction as provided in this paragraph. In
computing such deduction, (a) the amount of the bond premium shall be
determined with reference to the amount of the basis, for determining
loss on sale or exchange, of such bond, and with reference to the amount
payable on maturity or on earlier call date, with adjustments proper to
reflect unamortized bond premium with respect to the bond, for the peri-
od prior to July thirteenth, nineteen hundred sixty-six with respect to
the taxpayer with respect to such bond, and (b) the amortizable bond
premium of the year shall be the amount of the bond premium attributable
to such year. Such determinations shall be made in accordance with the
method of amortizing bond premium regularly employed by the holder of
such bond, if such method is reasonable, and in all other cases in
accordance with regulations of the commissioner of finance prescribing
reasonable methods of amortizing bond premium. This paragraph shall
apply only if the taxpayer shall so elect, in accordance with regu-
lations of the commissioner of finance, and such election shall be made
separately with respect to: (1) bonds, the interest of which is wholly
taxable, and (2) bonds, the interest of which is wholly or partially tax
exempt, for purposes of the income tax imposed by chapter one of the
internal revenue code. If such election is made with respect to any bond
of the taxpayer described in clauses one or two of this subparagraph, it
shall also apply to all bonds in the same class held by the taxpayer at
the beginning of the first year to which the election applies and to all
such bonds thereafter acquired by it and shall be binding for all subse-
quent years with respect to all such bonds of the taxpayer, unless, upon
application by the taxpayer, the commissioner of finance permits the
taxpayer, subject to such conditions as the commissioner of finance
deems necessary, to revoke such election. As used in this paragraph,
the term "bond" means any bond, debenture, note, or certificate or other
evidence of indebtedness, issued by any corporation and bearing inter-
est, including any like obligation issued by a government or political
subdivision thereof, with interest coupons or in registered form, but
does not include any such obligation which constitutes stock in trade of
the taxpayer or any such obligation of a kind which would properly be
included in the inventory of the taxpayer if on hand at the close of the
year, or any such obligation held by the taxpayer primarily for sale to
customers in the ordinary course of its trade or business; and
(j) (1) At the election of the taxpayer there shall be deducted from
gross income, or if gross income is derived from business carried on
within and without this city, from the portion thereof allocated within
the city, depreciation with respect to any property such as described in
subparagraph two of this paragraph, not exceeding twice the depreciation
allowed with respect to the same property for federal income tax
purposes.
(2) Such deduction shall be allowed only with respect to tangible
property which is depreciable pursuant to section one hundred sixty-sev-
en of the internal revenue code, having a situs in this city and used in
the taxpayer's business, (i) constructed, reconstructed or erected after
December thirty-first, nineteen hundred sixty-five, pursuant to a
contract which was, on or before December thirty-first, nineteen hundred
sixty-seven, and at all times thereafter, binding on the taxpayer or
A. 10030 517
pursuant to an order placed on or before December thirty-first, nineteen
hundred sixty-seven, by purchase as defined in section one hundred
seventy-nine (d), of the internal revenue code, if the original use of
such property commenced with the taxpayer, commenced in this city and
commenced after December thirty-first, nineteen hundred sixty-five or
(ii) acquired, constructed, reconstructed, or erected subsequent to
December thirty-first, nineteen hundred sixty-seven, if such acquisi-
tion, construction, reconstruction or erection is pursuant to a plan of
the taxpayer which was in existence December thirty-first, nineteen
hundred sixty-seven and not thereafter substantially modified, and such
acquisition, construction, reconstruction or erection would qualify
under the rules in paragraph four, five or six of subsection (h) of
section forty-eight of the internal revenue code provided all references
in such paragraphs four, five and six to the dates October nine, nine-
teen hundred sixty-six, and October ten, nineteen hundred sixty-six,
shall read as December thirty-first, nineteen hundred sixty-seven. A
taxpayer shall be allowed a deduction under clause (i) or (ii) of this
subparagraph only if the tangible property shall be delivered or the
construction, reconstruction or erection shall be completed on or before
December thirty-first, nineteen hundred sixty-nine, except in the case
of tangible property which is acquired, constructed, reconstructed or
erected pursuant to a contract which was, on or before December thirty-
first, nineteen hundred sixty-seven, and at all times thereafter, bind-
ing on the taxpayer. Provided, however, for any taxable year beginning
on or after January first, nineteen hundred sixty-eight, a taxpayer
shall not be allowed a deduction under paragraph (a) of this subdivision
with respect to tangible personal property leased by it to any other
person or corporation. Any such contract or agreement to lease or rent
or for a license to use such property shall be considered a lease. With
respect to property which the taxpayer uses itself for purposes other
than leasing for part of a taxable year and leases for a part of a taxa-
ble year, the taxpayer shall be allowed a deduction under paragraph (a)
of this subdivision in proportion to the part of the year it uses such
property.
(3) If the deduction allowable for any taxable year pursuant to this
subdivision exceeds the taxpayer's net income computed without the
allowance of such deduction and without the allowance of any deduction
pursuant to paragraph (f) of this subdivision with reference to the same
property, the excess may be carried over to the following taxable year
or years and may be deducted in computing net income for such year or
years.
(4) In any taxable year when property is sold or otherwise disposed
of, with respect to which a deduction has been allowed pursuant to this
paragraph, the gain or loss thereon shall be computed by adjusting the
basis of such property to reflect the deductions so allowed, and if the
taxpayer's gross income is derived from business carried on both within
and without the city, shall be allocated within the city. Provided,
however, that no loss shall be recognized for the purposes of this para-
graph with respect to a sale or other disposition of property to a
person whose acquisition thereof is not a purchase as defined in section
one hundred seventy-nine (d) of the internal revenue code.
2. In computing net income no deduction shall in any case be allowed
in respect of:
(a) Any amount paid out for new buildings or for permanent improve-
ments or betterments made to increase the value of any property.
A. 10030 518
(b) Any amount expended in restoring or in making good the exhaustion
thereof for which an allowance is or has been made.
§ 11-630 Administration; procedure; provisions of law applicable.
For the purpose of carrying into effect the provisions of this part, and
except as otherwise provided in this part, income shall be computed,
gain or loss ascertained, deductions made, apportionments and allo-
cations determined, at the same time and subject to the same limitations
and conditions, in so far as practicable, as is provided by part one of
this subchapter in relation to the tax imposed by such part.
§ 11-631 Tax on production credit associations. Pursuant to the
authority conferred by the federal farm credit act of nineteen hundred
thirty-three, every production credit association organized under the
authority of the United States and located within the city after the
stock held in it by the federal production credit corporation has been
retired shall annually pay a tax measured by its net income, which shall
be computed in the same manner as the tax imposed upon national banking
associations by section 11-623 of this part and shall be subject to the
provisions of sections 11-624 of this part to 11-630 of this part inclu-
sive.
§ 11-632 Applicability of part three. 1. This part shall be applica-
ble only to the taxes imposed by parts one and two of this subchapter.
2. Cross reference. For years for which parts one and two of this
subchapter impose a tax, see sections 11-613 and 11-624 of this subchap-
ter.
PART 3
ADMINISTRATION FOR PARTS 1 AND 2
§ 11-633 Taxpayer's returns. 1. Every taxpayer, on or before March
fifteenth of each year, beginning with the year nineteen hundred sixty-
seven and ending with the year nineteen hundred seventy-three, shall
make a return subscribed by the taxpayer and affirmed by the taxpayer to
be true under the penalties of perjury to the commissioner of finance,
for the calendar year next preceding, as to the business or that portion
of the business of such taxpayer the income from which is the basis of
taxation under part one or two of this subchapter, except that every
trust company and savings bank which shall become incorporated between
the thirty-first day of December and the succeeding first day of July,
shall make its return for such period on or before September first, and
every taxpayer, other than a trust company and savings bank, which shall
commence to do business in the city or become located in the city, shall
make its return for the calendar year in which it commences to do busi-
ness or becomes located, on or before the twentieth day of January of
the year succeeding such calendar year, and except that every taxpayer,
other than a trust company and savings bank, which shall be dissolved,
cease to do business in the city or cease to be located in the city,
between the thirty-first day of December and the succeeding sixteenth
day of March and shall not become merged or consolidated with another
corporation taxable under the same part, shall make its return for such
period on or before the date of such dissolution, or cessation of busi-
ness, and every trust company and savings bank which shall be dissolved,
and shall not become merged or consolidated with another corporation
taxable under the same part, shall make its return, for the period for
which it is taxable under subdivision six of section 11-612 of this
subchapter on or before the date of such dissolution. Such return shall
be in such form and contain such information as the commissioner of
A. 10030 519
finance may require for the purpose of making any computation or other-
wise performing its duty under parts one, two, and three of this
subchapter. Such return shall state specifically the items of gross
income derived from such business and the deductions allowed by the part
for which the return is filed, the net income which is the basis of the
tax, and the amount of tax due. The return shall be subscribed by the
president, vice-president, treasurer, assistant treasurer, chief
accounting officer or any other officer of the taxpayer duly authorized
so to act. The fact that an individual's name is signed on the return
shall be prima facie evidence that such individual is authorized to
subscribe and affirm the return on behalf of the corporation. Blank
forms of return shall be furnished by the commissioner of finance upon
application, but failure to secure the form shall not relieve any
taxpayer from the obligation of making any return herein required. An
automatic extension of three months for the filing of its annual return
shall be allowed for any taxpayer if, within the time prescribed under
this subdivision for the filing thereof, such taxpayer files with the
commissioner of finance an application for extension in such form as the
commissioner of finance may prescribe by regulation and pays on or
before the date of such filing the amount properly estimated as its tax.
The commissioner of finance may grant a reasonable extension of time for
filing a return, which may be in addition to any three-month automatic
extension allowed, whenever in the commissioner's judgment good cause
exists and shall keep a record of every such extension and the reason
therefor. No such extension or extensions shall aggregate more than
three months, exclusive of any automatic extension.
2. If the amount of taxable income for any year of any taxpayer as
returned to the United States treasury department or the New York state
tax department is changed or corrected by the commissioner of internal
revenue or other officer of the United States or the New York state tax
commission or other competent authority; or if a taxpayer, pursuant to
subsection (d) of section sixty-two hundred thirteen of the internal
revenue code, executes a notice of waiver of the restrictions provided
in subsection (a) of such section, or if a taxpayer, pursuant to subdi-
vision (f) of section one thousand eighty-one of the tax law, executes a
notice of waiver of the restrictions provided in subdivision (c) of such
section, such taxpayer shall report such change or corrected taxable
income or such execution of such notice of waiver and the changes or
corrections of such taxpayer's federal or New York state taxable income
on which it is based, within ninety days after such execution or the
final determination of such change or correction, or as required by the
commissioner of finance, and shall concede the accuracy of such determi-
nation or state wherein it is erroneous. Any taxpayer filing an amended
return with such department shall also file within ninety days thereaft-
er an amended return with the commissioner of finance which shall
contain such information as it shall require.
§ 11-634 Consolidated returns. Corporations which are affiliated
may, if authorized, and shall, if required, by the commissioner of
finance, under regulations prescribed by the commissioner of finance,
make a consolidated return for the purpose of parts one, two and three
of this subchapter. The commissioner of finance may, in his or her
discretion, authorize bank holding companies as defined in article
three-a of the banking law to make a consolidated return with affiliated
corporations taxable under part one and under part two of this subchap-
ter in which case the consolidated tax will be computed in accordance
with the provisions of part one of this subchapter. In all other cases
A. 10030 520
in which a corporation taxable under part two of this subchapter makes a
consolidated return with corporations taxable under part one of this
subchapter, the consolidated tax will be computed in accordance with the
provisions of part one of this subchapter. In any case in which a tax is
assessed upon the basis of a consolidated return, the total tax shall be
computed in the first instance as a unit and shall then be assessed upon
the respective affiliated corporations in such proportions as may be
agreed upon among them, or in the absence of any such agreement, then on
the basis of the net income properly assignable to each.
§ 11-635 Payment of tax. Each taxpayer shall, at the time of filing
its return, pay to the commissioner of finance:
(a) the amount of tax payable under part one or two of this subchapter
as the same shall appear from the face of the return, or
(b) if payments of estimated tax have been made pursuant to section
11-636 of this part, the balance, if any, of the tax payable under part
one or two of this subchapter, as the same shall appear from the face of
the return, after applying thereto any payments made pursuant to said
section.
If the time for filing the return shall be extended, the taxpayer
shall pay in addition interest at the rate of six per centum per annum
from the time when the return was originally required to be filed to the
time of payment upon the amount by which the tax, or the portion thereof
payable when the return was required to be filed, exceeds the amount
then paid:
(1) a payment made on or before the date of filing of an application
for an automatic extension shall be deemed properly estimated if its
either: (A) not less than ninety per centum of the tax as finally
determined, or (B) not less than the tax shown on the taxpayer's return
for the preceding taxable year, if such preceding year was a taxable
year of twelve months; and
(2) the time when a return is required to be filed shall be determined
without regard to any extension of time for filing such return.
§ 11-636 Declaration of estimated tax; payments on account of esti-
mated tax. 1. Every taxpayer subject to the tax imposed by part one or
two of this subchapter shall make a declaration of the estimated tax
upon the basis of its net income for the current calendar year, contain-
ing such information as the commissioner of finance may prescribe by
regulations or instructions, if such estimated tax can reasonably be
expected to exceed one thousand dollars.
2. The term "estimated tax" means the amount which a taxpayer esti-
mates to be the tax imposed upon it by part one or two of this subchap-
ter upon the basis of its net income for the current calendar year, less
the amount which it estimates to be the sum of any credits allowable
against the tax.
3. A declaration of estimated tax shall be filed on or before June
fifteenth of the calendar year upon the net income of which the tax is
based, except that if the requirements of subdivision one of this
section are first met:
(a) after June first and before October second of such calendar year,
the declaration shall be filed on or before October fifteenth, or
(b) after October first of such calendar year, the declaration shall
be filed on or before January fifteenth of the succeeding calendar year.
Notwithstanding any other provision of this subdivision, no declara-
tion need be filed prior to September eleventh, nineteen hundred sixty-
six.
A. 10030 521
4. A taxpayer may amend a declaration under regulations of the commis-
sioner of finance.
5. If, on or before February fifteenth of the succeeding year, a
taxpayer files its return for the calendar year upon the net income of
which the declaration is required to be based, and pays therewith the
balance, if any, of the full amount of the tax shown to be due on the
return,
(a) such return shall be considered as its declaration if no declara-
tion was required to be filed during such calendar year, but is other-
wise required to be filed on or before January fifteenth of the succeed-
ing year pursuant to subdivision three of this section,
(b) such return shall be considered as an amendment permitted by
subdivision four of this section to be filed on or before January
fifteenth if the tax shown on the return is greater than the estimated
tax shown on a declaration previously made.
6. The commissioner of finance may grant a reasonable extension of
time, not to exceed three months, for the filing of any declaration
required pursuant to this section, on such terms and conditions as the
commissioner may require.
7. Every taxpayer subject to the tax imposed by part one or two of
this subchapter shall pay with the return of tax, if any, required to be
filed upon the basis of its net income for the preceding calendar year,
or with an application for extension of the time for filing such return,
an amount equal to twenty-five per centum of the preceding year's tax,
if such preceding year's tax exceeded one thousand dollars.
8. The estimated tax with respect to which a declaration for such
calendar year is required pursuant to this section shall be paid as
follows:
(a) If the declaration is filed on or before June fifteenth, the esti-
mated tax shown thereon, after applying thereto the amount if any, paid
during the same calendar year pursuant to subdivision seven of this
section, shall be paid in three equal installments. One of such
installments shall be paid at the time of the filing of the declaration,
one shall be paid on the following October fifteenth, and one on the
following January fifteenth.
(b) If the declaration is filed after June fifteenth, and not after
October fifteenth of such calendar year, and is not required to be filed
on or before June fifteenth of such calendar year, the estimated tax
shown on such declaration, after applying thereto the amount, if any,
paid during the same calendar year pursuant to subdivision seven of this
section, shall be paid in two equal installments. One of such install-
ments shall be paid at the time of the filing of the declaration and one
shall be paid on the following January fifteenth.
(c) If the declaration is filed after October fifteenth of such calen-
dar year, and is not required to be filed on or before October fifteenth
of such calendar year, the estimated tax shown on such declaration,
after applying thereto the amount, if any, paid in respect of such
calendar year pursuant to subdivision seven of this section, shall be
paid in full at the time of the filing of the declaration.
(d) If the declaration is filed after the time prescribed therefor, or
after the expiration of any extension of time therefor, paragraphs (b)
and (c) of this subdivision shall not apply, and there shall be paid at
the time of such filing all installments of estimated tax payable at or
before such time, and the remaining installments shall be paid at the
times at which, and in the amounts in which, they would have been paya-
ble if the declaration had been filed when due.
A. 10030 522
9. If any amendment of a declaration is filed, the remaining install-
ments, if any, shall be ratably increased or decreased, as the case may
be, to reflect any increase or decrease in the estimated tax by reason
of such amendment, and if any amendment is made after October fifteenth
of the calendar year, any increase in the estimated tax by reason there-
of shall be paid at the time of making such amendment.
10. Any amount paid pursuant to subdivision seven of this section
shall be applied after payment as a first installment against the esti-
mated tax of the taxpayer shown on the declaration next required to be
filed pursuant to this section or, if no declaration of estimated tax is
required to be filed by the taxpayer pursuant to this section, any such
amount shall be considered a payment on account of the tax shown on the
return of tax required to be filed by the taxpayer upon the basis of its
net income for the calendar year during which such amount was paid.
11. Notwithstanding the provisions of section 11-679 of this chapter
or of section three-a of the general municipal law, if any amount paid
pursuant to subdivision seven of this section, exceeds the tax shown on
the return required to be filed by the taxpayer upon the basis of its
net income for the calendar year during which the amount was paid,
interest shall be allowed and paid on the amount by which the amount so
paid pursuant to such subdivision exceeds such tax, at the rate of six
per centum per annum from the date of payment of the amount so paid
pursuant to such subdivision to March fifteenth of the succeeding calen-
dar year, provided, however, that no interest shall be allowed or paid
under this subdivision if the amount thereof is less than one dollar.
12. As used in this section, "the preceding year's tax" means the tax
imposed upon the taxpayer by part one or two of this subchapter upon the
basis of its net income for the preceding calendar year, or, for
purposes of computing the first installment of estimated tax when an
application has been filed for extension of time for filing the return
required to be filed for such preceding calendar year, the amount prop-
erly estimated pursuant to section 11-635 of this part as the tax
imposed upon the basis of its net income for such calendar year.
13. This section shall apply to an income period of less than twelve
months in accordance with regulations of the commissioner of finance.
14. The commissioner of finance may grant a reasonable extension of
time, not to exceed six months, for payment of any installment of esti-
mated tax required pursuant to this section, on such terms and condi-
tions as the commissioner may require, including the furnishing of a
bond or other security by the taxpayer in an amount not exceeding twice
the amount for which any extension of time for payment is granted,
provided however, that interest at the rate of six per centum per annum
for the period of the extension shall be charged and collected on the
amount for which any extension of time for payment is granted under this
subdivision.
15. A taxpayer may elect to pay any installment of estimated tax prior
to the date prescribed in this section for payment thereof.
§ 11-637 Real property taxable. Nothing in this subchapter shall be
construed to exempt the real property of any taxpayer from taxation to
the same extent, according to its value, as other real property is
taxed.
PART 4
BANKING CORPORATION TAX
§ 11-638 General definitions. As used in this part:
A. 10030 523
(a) The word "taxpayer" means a corporation or association subject to
a tax imposed by this part.
(b) The phrase "taxable year" means the taxpayer's taxable year for
federal income tax purposes, or the part thereof during which the
taxpayer is subject to the tax imposed by this part.
(c) The term "international banking facility" shall mean an interna-
tional banking facility located in New York state and shall have the
same meaning as is set forth in the New York state banking law or regu-
lations of the New York state banking department or as is set forth in
the laws of the United States or regulations of the board of governors
of the federal reserve system.
(d) The term "subsidiary" means a corporation or association of which
over fifty percent of the number of shares of stock entitling the hold-
ers thereof to vote for the election of directors or trustees is owned
by the taxpayer.
(e) The term "subsidiary capital" means investments in the stock of
subsidiaries and any indebtedness from subsidiaries, exclusive of
accounts receivable acquired in the ordinary course of trade or business
for services rendered or for sales of property held primarily for sale
to customers, whether or not evidenced by written instrument, on which
interest is not claimed and deducted by the subsidiary for purposes of
taxation under this part or subchapter two of this chapter, provided,
however, there shall be deducted from subsidiary capital any liabilities
payable by their terms on demand or within one year from the date
incurred, other than loans or advances outstanding for more than a year
as of any date during the year covered by the return, which are attrib-
utable to subsidiary capital.
(f) The term "financial holding company" means a corporation that,
pursuant to subsection (l) of section four of the federal bank holding
company act of nineteen hundred fifty-six, as amended, has filed with
the federal reserve board a written declaration that the corporation
elects to be a financial holding company and whose election has not been
found to be ineffective by the federal reserve board.
§ 11-639 Imposition of tax. (a) (1) For the privilege of doing busi-
ness in the city in a corporate or organized capacity, a tax, computed
under section 11-643 of this part, is hereby annually imposed on every
banking corporation for each of its taxable years, or any part thereof,
beginning on or after January first, nineteen hundred seventy-three and
before January first, two thousand fifteen.
(2) For the privilege of doing business in the city in a corporate or
organized capacity, a tax, computed under section 11-643 of this part,
is hereby annually imposed on every banking corporation for each taxable
year, or any part thereof, commencing on or after January first, two
thousand fifteen, where such banking corporation (i) has an election in
effect under subsection (a) of section thirteen hundred sixty-two of the
internal revenue code of 1986, as amended, or (ii) is a qualified
subchapter S subsidiary within the meaning of paragraph three of
subsection (b) of section thirteen hundred sixty-one of the internal
revenue code of nineteen eighty-six, as amended.
(b) In the case of a taxpayer whose taxable year is other than a
calendar year, there is hereby imposed a tax for the privilege of doing
business in the city in a corporate or organized capacity for the period
beginning January first, nineteen hundred seventy-three and extending
through the subsequent part of its first such taxable year ending after
such date. Such tax shall be computed under section 11-643 of this part
on the basis of such taxpayer's entire net income, or other applicable
A. 10030 524
basis as the case may be, for such period and shall be paid with a
return which shall be separately filed with the department of finance
not later than the fifteenth day of the third month succeeding the close
of such period. The requirements of sections 11-644 and 11-645 of this
part, relating to declarations and payments of estimated tax, except
subdivision (a) of section 11-645 of this part, shall not be applicable
to the tax imposed by this subdivision.
(c) For taxable years beginning on or after January first, two thou-
sand eleven, (1) a banking corporation is doing business in the city in
a corporate or organized capacity if (i) it has issued credit cards to
one thousand or more customers who have a mailing address within the
city as of the last day of its taxable year, or (ii) it has merchant
customer contracts with merchants and the total number of locations
covered by those contracts equals one thousand or more locations in the
city to whom the banking corporation remitted payments for credit card
transactions during the taxable year, or (iii) it has receipts of one
million dollars or more in the taxable year from its customers who have
been issued credit cards by the banking corporation and have a mailing
address within the city, or (iv) it has receipts of one million dollars
or more arising from merchant customer contracts with merchants relating
to locations in the city, or (v) the sum of the number of customers
described in subparagraph (i) of this paragraph plus the number of
locations covered by its contracts described in subparagraph (ii) of
this paragraph equals one thousand or more, or the amount of its
receipts described in subparagraphs (iii) and (iv) of this paragraph
equals one million dollars or more. For purposes of this paragraph,
receipts from processing credit card transactions for merchants include
merchant discount fees received by the banking corporation.
(2) As used in this subdivision, the term "credit card" includes bank,
credit, travel and entertainment cards.
(d) Cross-Reference. For the taxation of corporations that are not
described in paragraph two of subdivision (a) of this section, that were
taxable under this subchapter for tax years beginning before January
first, two thousand fifteen, see subchapter three-A of this chapter.
§ 11-640 Banking, corporation defined; exempt corporations. (a) For
the purpose of this part, a banking corporation means:
(1) every corporation or association organized under the laws of this
state which is authorized to do a banking business or which is doing a
banking business;
(2) every corporation or association organized under the laws of any
other state or country which is doing a banking business;
(3) every national banking association organized under the authority
of the United States which is doing a banking business;
(4) every federal savings bank which is doing a banking business;
(5) every federal savings and loan association which is doing a bank-
ing business;
(6) a production credit association organized under the federal farm
credit act of nineteen hundred thirty-three, which is doing a banking
business and all of whose stock held by the federal production credit
corporation has been retired;
(7) every other corporation or association organized under the author-
ity of the United States which is doing a banking business;
(8) the mortgage facilities corporation created in article seven of
the private housing finance law;
(9) any corporation sixty-five percent or more of whose voting stock
is owned or controlled, directly or indirectly, by a corporation or
A. 10030 525
corporations subject to article three-a of the banking law, or regis-
tered under the federal bank holding company act of nineteen hundred
fifty-six, as amended, or registered as a savings and loan holding
company, but excluding a diversified savings and loan holding company,
under the federal national housing act, as amended, or by a corporation
or corporations described in paragraphs one through eight of this subdi-
vision, provided the corporation whose voting stock is so owned or
controlled is principally engaged in a business, regardless of where
conducted, which (i) might be lawfully conducted by a corporation
subject to article three of the banking law or by a national banking
association or (ii) is so closely related to banking or managing or
controlling banks as to be a proper incident thereto, as set forth in
paragraph eight of subsection (c) or subparagraph (F) of paragraph four
of subsection (k) of section four of the federal bank holding company
act of nineteen hundred fifty-six, as amended, or (iii) holds and
manages investment assets, including but not limited to bonds, notes,
debentures and other obligations for the payment of money, stocks, part-
nership interests or other equity interests, and other investment secu-
rities, and which is not a business described in subparagraph (i) or
(ii) of this paragraph.
(b) Banking business defined. The words "banking business" as used in
this section mean such business as a corporation or association may be
created to do under article three, three-B, five, five-A, six or ten of
the banking law or any business which a corporation or association is
authorized by such article to do. However, with respect to a national
banking association organized under the authority of the United States,
a federal savings bank, a federal savings and loan association or a
production credit association, the words "banking business" as used in
this section mean such business as a national banking association,
federal savings bank, federal savings and loan association or production
credit association, respectively, may be created to do or is authorized
to do under the laws of the United States or this state. The words
"banking business" as used in this section shall also mean such business
as any corporation or association organized under the authority of the
United States or organized under the laws of any other state or country
has authority to do which is substantially similar to the business which
a corporation or association may be created to do under article three,
three-B, five, five-A, six or ten of the banking law or any business
which a corporation or association is authorized by such article to do.
(c) Exempt corporations. A trust company all of whose capital stock is
owned by twenty or more savings banks organized under New York law shall
be exempt from the tax under this part.
(d) Corporations taxable under subchapter two. Notwithstanding the
provisions of this part, all corporations of classes now or heretofore
taxable under subchapter two of this chapter shall continue to be taxa-
ble under subchapter two of this chapter, except: (1) corporations
organized under article five-A of the banking law; (2) corporations
subject to article three-A of the banking law, or registered under the
federal bank holding company act of nineteen hundred fifty-six, as
amended, or registered as a savings and loan holding company, but
excluding a diversified savings and loan holding company, under the
federal national housing act, as amended, which make a combined return
under the provisions of subdivision (f) of section 11-646 of this part;
(3) banking corporations described in paragraph nine of subdivision (a)
of this section; and (4) any captive REIT or captive RIC that is
required to be included in a combined return under the provisions of
A. 10030 526
section 11-646 of this part. Provided, however, that a corporation
described in paragraph three of this subdivision which was subject to
the tax imposed by subchapter two of this chapter for its taxable year
ending during nineteen hundred eighty-four may, on or before the due
date for filing its return, determined with regard to extensions, for
its taxable year ending during nineteen hundred eighty-five, make a one
time election to continue to be taxable under such subchapter two. Such
election shall continue to be in effect until revoked by the taxpayer.
In no event shall such election or revocation be for a part of a taxable
year.
(e) Corporations taxable under article thirty-three of the tax law.
Except for corporations described in subsection (l) of section fourteen
hundred fifty-three of the tax law, corporations liable to tax under
article thirty-three of the tax law shall not be subject to tax under
this part.
(f) A banking corporation organized under the laws of a country, or
any political subdivision thereof, other than the United States shall
not be deemed to be doing business in the city under this subchapter if
its activities in the city are limited solely to (1) investing or trad-
ing in stocks and securities for its own account within the meaning of
clause (ii) of subparagraph (A) of paragraph two of subsection (b) of
section eight hundred sixty-four of the internal revenue code or (2)
investing or trading in commodities for its own account within the mean-
ing of clause (ii) of subparagraph (B) of paragraph two of subsection
(b) of section eight hundred sixty-four of the internal revenue code or
(3) any combination of activities described in paragraphs one and two of
this subdivision.
(g) Transitional provisions relating to the enactment and implementa-
tion of the federal Gramm-Leach-Bliley act. (1) Notwithstanding
anything to the contrary contained in this section other than subdivi-
sion (m) of this section, a corporation that was in existence before
January first, two thousand and was subject to tax under subchapter two
of this chapter for its last taxable year beginning before January
first, two thousand, shall continue to be taxable under subchapter two
of this chapter for all taxable years beginning on or after January
first, two thousand and before January first, two thousand one;
provided, however, this shall not apply to any taxable year during which
such corporation is a banking corporation described in paragraphs one
through eight of subdivision (a) of this section. Notwithstanding
anything to the contrary contained in this section other than subdivi-
sion (m) of this section, a banking corporation that was in existence
before January first, two thousand and was subject to tax under this
subchapter for its last taxable year beginning before January first, two
thousand, shall continue to be taxable under this subchapter for all
taxable years beginning on or after January first, two thousand and
before January first, two thousand one. Provided, however, that nothing
in this subdivision shall prohibit a corporation that elected pursuant
to subdivision (d) of this section to be taxable under subchapter two of
this chapter from revoking that election in accordance with such subdi-
vision (d).
For purposes of this paragraph, a corporation shall be considered to
be subject to tax under subchapter two of this chapter for a taxable
year if such corporation was not a taxpayer but was properly included in
a combined report filed pursuant to subdivision four of section 11-605
of this chapter for such taxable year and a corporation shall be consid-
ered to be subject to tax under this subchapter for a taxable year if
A. 10030 527
such corporation was not a taxpayer but was properly included in a
combined report filed pursuant to subdivision (f) or (g) of section
11-646 of this chapter for such taxable year. A corporation that was in
existence before January first, two thousand but first becomes a taxpay-
er in a taxable year beginning on or after January first, two thousand
and before January first, two thousand one, shall be considered for
purposes of this paragraph to have been subject to tax under subchapter
two of this chapter for its last taxable year beginning before January
first, two thousand if such corporation would have been subject to tax
under such subchapter for such taxable year if it had been a taxpayer
during such taxable year. A corporation that was in existence before
January first, two thousand but first becomes a taxpayer in a taxable
year beginning on or after January first, two thousand and before Janu-
ary first, two thousand one, shall be considered for purposes of this
paragraph to have been subject to tax under this subchapter for its last
taxable year beginning before January first, two thousand if such corpo-
ration would have been subject to tax under this subchapter for such
taxable year if it had been a taxpayer during such taxable year.
(2) Notwithstanding anything to the contrary contained in this section
other than subdivision (m) of this section, a corporation formed on or
after January first, two thousand and before January first, two thousand
one may elect to be subject to tax under this subchapter or under
subchapter two of this chapter for its first taxable year beginning on
or after January first, two thousand and before January first, two thou-
sand one in which either (i) sixty-five percent or more of its voting
stock is owned or controlled, directly or indirectly by a financial
holding company, provided the corporation whose voting stock is so owned
or controlled is principally engaged in activities that are described in
paragraph four or five of subdivision (k) of section four of the federal
bank holding company act of nineteen hundred fifty-six, as amended and
the regulations promulgated pursuant to the authority of such section or
(ii) it is a financial subsidiary. An election under this paragraph may
not be made by a corporation described in paragraphs one through eight
of subdivision (a) of this section or in subdivision (e) of this
section. In addition, an election under this paragraph may not be made
by a corporation that is a party to a reorganization, as defined in
subsection (a) of section three hundred sixty-eight of the internal
revenue code of nineteen hundred eighty-six, as amended, of a corpo-
ration described in paragraph one of this subdivision if both corpo-
rations were sixty-five percent or more owned or controlled, directly or
indirectly by the same interests at the time of the reorganization.
An election under this paragraph must be made by the taxpayer on or
before the due date for filing its return, determined with regard to
extensions of time for filing, for the applicable taxable year. The
election to be taxed under subchapter two of this chapter shall be made
by the taxpayer by filing the return required pursuant to subdivision
one of section 11-605 of this chapter and the election to be taxed under
this subchapter shall be made by the taxpayer by filing the return
required pursuant to subdivision (a) of section 11-646 of this chapter.
Any election made pursuant to this paragraph shall be irrevocable and
shall apply to each subsequent taxable year beginning on or after Janu-
ary first, two thousand and before January first, two thousand one,
provided that the stock ownership requirements described in subparagraph
(i) of this paragraph are met or such corporation described in subpara-
graph (ii) of this paragraph continues as a financial subsidiary.
A. 10030 528
(3) For purposes of this section, a financial subsidiary means a
corporation (i) sixty-five percent or more of whose voting stock is
owned or controlled, directly or indirectly by a banking corporation
described in paragraph one, two or three of subdivision (a) of this
section and (ii) is described in subdivision (g) of section five thou-
sand one hundred thirty-six-A of the revised statutes of the United
States or section forty-six of the federal deposit insurance act. For
purposes of this subchapter, the term "banking corporation" shall
include a corporation electing to be taxed under this subchapter pursu-
ant to paragraph two of this subdivision for so long as such election
shall be in effect.
(4) The provisions of this subdivision shall not apply to a captive
REIT or a captive RIC.
(h) Transitional provisions relating to the enactment and implementa-
tion of the federal Gramm-Leach-Bliley act. (1) Notwithstanding anything
to the contrary contained in this section other than subdivision (m) of
this section, a corporation that was in existence before January first,
two thousand one and was subject to tax under subchapter two of this
chapter for its last taxable year beginning before January first, two
thousand one, shall continue to be taxable under subchapter two for all
taxable years beginning on or after January first, two thousand one and
before January first, two thousand three, provided, however, this shall
not apply to any taxable year during which such corporation is a banking
corporation described in paragraphs one through eight of subdivision (a)
of this section. Notwithstanding anything to the contrary contained in
this section other than subdivision (m) of this section, a banking
corporation that was in existence before January first, two thousand one
and was subject to tax under this subchapter for its last taxable year
beginning before January first, two thousand one, shall continue to be
taxable under this subchapter for all taxable years beginning on or
after January first, two thousand one and before January first, two
thousand three. Provided, however, that nothing in this subdivision
shall prohibit a corporation that elected pursuant to subdivision (d) of
this section to be taxable under subchapter two of this chapter from
revoking that election in accordance with subdivision (d) of this
section.
For purposes of this paragraph, a corporation shall be considered to
be subject to tax under subchapter two of this chapter for a taxable
year if such corporation was not a taxpayer but was properly included in
a combined report filed pursuant to subdivision four of section 11-605
of this chapter for such taxable year and a corporation shall be consid-
ered to be subject to tax under this subchapter for a taxable year if
such corporation was not a taxpayer but was properly included in a
combined report filed pursuant to subdivision (f) or (g) of section
11-646 of this chapter for such taxable year. A corporation that was in
existence before January first, two thousand one but first becomes a
taxpayer in a taxable year beginning on or after January first, two
thousand one and before January first, two thousand three, shall be
considered for purposes of this paragraph to have been subject to tax
under subchapter two of this chapter for its last taxable year beginning
before January first, two thousand one if such corporation would have
been subject to tax under such subchapter for such taxable year if it
had been a taxpayer during such taxable year. A corporation that was in
existence before January first, two thousand one but first becomes a
taxpayer in a taxable year beginning on or after January first, two
thousand one and before January first, two thousand three, shall be
A. 10030 529
considered for purposes of this paragraph to have been subject to tax
under this subchapter for its last taxable year beginning before January
first, two thousand one if such corporation would have been subject to
tax under this subchapter for such taxable year if it had been a taxpay-
er during such taxable year.
(2) Notwithstanding anything to the contrary contained in this section
other than subdivision (m) of this section, a corporation formed on or
after January first, two thousand one and before January first, two
thousand three may elect to be subject to tax under this subchapter or
under subchapter two of this chapter for its first taxable year begin-
ning on or after January first, two thousand one and before January
first, two thousand three in which either (i) sixty-five percent or more
of its voting stock is owned or controlled, directly or indirectly by a
financial holding company, provided the corporation whose voting stock
is so owned or controlled is principally engaged in activities that are
described in paragraph four or five of subdivision (k) of section four
of the federal bank holding company act of nineteen hundred fifty-six,
as amended and the regulations promulgated pursuant to the authority of
such section or (ii) it is a financial subsidiary. An election under
this paragraph may not be made by a corporation described in paragraphs
one through eight of subdivision (a) of this section or in subdivision
(e) of this section. In addition, an election under this paragraph may
not be made by a corporation that is a party to a reorganization, as
defined in subsection (a) of section three hundred sixty-eight of the
internal revenue code of nineteen hundred eighty-six, as amended, of a
corporation described in paragraph one of this subdivision if both
corporations were sixty-five percent or more owned or controlled,
directly or indirectly by the same interests at the time of the reorgan-
ization.
An election under this paragraph must be made by the taxpayer on or
before the due date for filing its return, determined with regard to
extensions of time for filing, for the applicable taxable year. The
election to be taxed under subchapter two of this chapter shall be made
by the taxpayer by filing the return required pursuant to subdivision
one of section 11-605 of this chapter and the election to be taxed under
this subchapter shall be made by the taxpayer by filing the return
required pursuant to subdivision (a) of section 11-646 of this chapter.
Any election made pursuant to this paragraph shall be irrevocable and
shall apply to each subsequent taxable year beginning on or after Janu-
ary first, two thousand one and before January first, two thousand
three, provided that the stock ownership requirements described in
subparagraph (i) of this paragraph are met or such corporation described
in subparagraph (ii) of this paragraph continues as a financial subsid-
iary.
(3) For purposes of this section, a financial subsidiary means a
corporation (i) sixty-five percent or more of whose voting stock is
owned or controlled, directly or indirectly by a banking corporation
described in paragraph one, two or three of subdivision (a) of this
section and (ii) is described in subdivision (g) of section five thou-
sand one hundred thirty-six-A of the revised statutes of the United
States or section forty-six of the federal deposit insurance act. For
purposes of this subchapter, the term "banking corporation" shall
include a corporation electing to be taxed under this subchapter pursu-
ant to paragraph two of this subdivision for so long as such election
shall be in effect.
A. 10030 530
(i) Transitional provisions relating to the enactment and implementa-
tion of the federal Gramm-Leach-Bliley act. (1) Notwithstanding anything
to the contrary contained in this section other than subdivision (m) of
this section, a corporation that was in existence before January first,
two thousand three and was subject to tax under subchapter two of this
chapter for its last taxable year beginning before January first, two
thousand three, shall continue to be taxable under subchapter two for
all taxable years beginning on or after January first, two thousand
three and before January first, two thousand four provided, however,
this shall not apply to any taxable year during which such corporation
is a banking corporation described in paragraphs one through eight of
subdivision (a) of this section. Notwithstanding anything to the contra-
ry contained in this section other than subdivision (m) of this section,
a banking corporation that was in existence before January first, two
thousand three and was subject to tax under this subchapter for its last
taxable year beginning before January first, two thousand three, shall
continue to be taxable under this subchapter for all taxable years
beginning on or after January first, two thousand three and before Janu-
ary first, two thousand four. Provided, however, that nothing in this
subdivision shall prohibit a corporation that elected pursuant to subdi-
vision (d) of this section to be taxable under subchapter two of this
chapter from revoking that election in accordance with subdivision (d)
of this section.
For purposes of this paragraph, a corporation shall be considered to
be subject to tax under subchapter two of this chapter for a taxable
year if such corporation was not a taxpayer but was properly included in
a combined report filed pursuant to subdivision four of section 11-605
of this chapter for such taxable year and a corporation shall be consid-
ered to be subject to tax under this subchapter for a taxable year if
such corporation was not a taxpayer but was properly included in a
combined report filed pursuant to subdivision (f) or (g) of section
11-646 of this chapter for such taxable year. A corporation that was in
existence before January first, two thousand three but first becomes a
taxpayer in a taxable year beginning on or after January first, two
thousand three and before January first, two thousand four, shall be
considered for purposes of this paragraph to have been subject to tax
under subchapter two of this chapter for its last taxable year beginning
before January first, two thousand three if such corporation would have
been subject to tax under such subchapter for such taxable year if it
had been a taxpayer during such taxable year. A corporation that was in
existence before January first, two thousand three but first becomes a
taxpayer in a taxable year beginning on or after January first, two
thousand three and before January first, two thousand four, shall be
considered for purposes of this paragraph to have been subject to tax
under this subchapter for its last taxable year beginning before January
first, two thousand three if such corporation would have been subject to
tax under this subchapter for such taxable year if it had been a taxpay-
er during such taxable year.
(2) Notwithstanding anything to the contrary contained in this section
other than subdivision (m) of this section, a corporation formed on or
after January first, two thousand three and before January first, two
thousand four may elect to be subject to tax under this subchapter or
under subchapter two of this chapter for its first taxable year begin-
ning on or after January first, two thousand three and before January
first, two thousand four in which either (i) sixty-five percent or more
of its voting stock is owned or controlled, directly or indirectly by a
A. 10030 531
financial holding company, provided the corporation whose voting stock
is so owned or controlled is principally engaged in activities that are
described in paragraphs four or five of subdivision (k) of section four
of the federal bank holding company act of nineteen hundred fifty-six,
as amended and the regulations promulgated pursuant to the authority of
such section or (ii) it is a financial subsidiary. An election under
this paragraph may not be made by a corporation described in paragraphs
one through eight of subdivision (a) of this section or in subdivision
(e) of this section. In addition, an election under this paragraph may
not be made by a corporation that is a party to a reorganization, as
defined in subsection (a) of section three hundred sixty-eight of the
internal revenue code of nineteen hundred eighty-six, as amended, of a
corporation described in paragraph one of this subdivision if both
corporations were sixty-five percent or more owned or controlled,
directly or indirectly by the same interests at the time of the reorgan-
ization.
An election under this paragraph must be made by the taxpayer on or
before the due date for filing its return, determined with regard to
extensions of time for filing, for the applicable taxable year. The
election to be taxed under subchapter two of this chapter shall be made
by the taxpayer by filing the return required pursuant to subdivision
one of section 11-605 of this chapter and the election to be taxed under
this subchapter shall be made by the taxpayer by filing the return
required pursuant to subdivision (a) of section 11-646 of this chapter.
Any election made pursuant to this paragraph shall be irrevocable and
shall apply to each subsequent taxable year beginning on or after Janu-
ary first, two thousand three and before January first, two thousand
four, provided that the stock ownership requirements described in
subparagraph (i) of this paragraph are met or such corporation described
in subparagraph (ii) of this paragraph continues as a financial subsid-
iary.
(3) For purposes of this section, a financial subsidiary means a
corporation (i) sixty-five percent or more of whose voting stock is
owned or controlled, directly or indirectly by a banking corporation
described in paragraph one, two or three of subdivision (a) of this
section and (ii) is described in subdivision (g) of section five thou-
sand one hundred thirty-six-A of the revised statutes of the United
States or section forty-six of the federal deposit insurance act. For
purposes of this subchapter, the term "banking corporation" shall
include a corporation electing to be taxed under this subchapter pursu-
ant to paragraph two of this subdivision for so long as such election
shall be in effect.
(j) Transitional provisions relating to the enactment and implementa-
tion of the federal Gramm-Leach-Bliley act. (1) Notwithstanding anything
to the contrary contained in this section other than subdivision (m) of
this section, a corporation that was in existence before January first,
two thousand four and was subject to tax under subchapter two of this
chapter for its last taxable year beginning before January first, two
thousand four, shall continue to be taxable under subchapter two for all
taxable years beginning on or after January first, two thousand four and
before January first, two thousand six. The preceding sentence shall not
apply to any taxable year during which such corporation is a banking
corporation described in paragraphs one through eight of subdivision (a)
of this section. Notwithstanding anything to the contrary contained in
this section other than subdivision (m) of this section, a banking
corporation that was in existence before January first, two thousand
A. 10030 532
four and was subject to tax under this subchapter for its last taxable
year beginning before January first, two thousand four, shall continue
to be taxable under this subchapter for all taxable years beginning on
or after January first, two thousand four and before January first, two
thousand six. Provided, however, that nothing in this subdivision shall
prohibit a corporation that elected pursuant to subdivision (d) of this
section to be taxable under subchapter two of this chapter from revoking
that election in accordance with subdivision (d) of this section.
For purposes of this paragraph, a corporation shall be considered to
be subject to tax under subchapter two of this chapter for a taxable
year if such corporation was not a taxpayer but was properly included in
a combined report filed pursuant to subdivision four of section 11-605
of this chapter for such taxable year and a corporation shall be consid-
ered to be subject to tax under this subchapter for a taxable year if
such corporation was not a taxpayer but was properly included in a
combined report filed pursuant to subdivision (f) or (g) of section
11-646 of this chapter for such taxable year. A corporation that was in
existence before January first, two thousand four but first becomes a
taxpayer in a taxable year beginning on or after January first, two
thousand four and before January first, two thousand six, shall be
considered for purposes of this paragraph to have been subject to tax
under subchapter two of this chapter for its last taxable year beginning
before January first, two thousand four if such corporation would have
been subject to tax under such subchapter for such taxable year if it
had been a taxpayer during such taxable year. A corporation that was in
existence before January first, two thousand four but first becomes a
taxpayer in a taxable year beginning on or after January first, two
thousand four and before January first, two thousand six, shall be
considered for purposes of this paragraph to have been subject to tax
under this subchapter for its last taxable year beginning before January
first, two thousand four if such corporation would have been subject to
tax under this subchapter for such taxable year if it had been a taxpay-
er during such taxable year.
(2) Notwithstanding anything to the contrary contained in this section
other than subdivision (m) of this section, a corporation formed on or
after January first, two thousand four and before January first, two
thousand six may elect to be subject to tax under this subchapter or
under subchapter two of this chapter for its first taxable year begin-
ning on or after January first, two thousand four and before January
first, two thousand six in which either (i) sixty-five percent or more
of its voting stock is owned or controlled, directly or indirectly by a
financial holding company, provided the corporation whose voting stock
is so owned or controlled is principally engaged in activities that are
described in paragraph four or five of subdivision (k) of section four
of the federal bank holding company act of nineteen hundred fifty-six,
as amended and the regulations promulgated pursuant to the authority of
such section or (ii) it is a financial subsidiary. An election under
this paragraph may not be made by a corporation described in paragraphs
one through eight of subdivision (a) of this section or in subdivision
(e) of this section. In addition, an election under this paragraph may
not be made by a corporation that is a party to a reorganization, as
defined in subsection (a) of section three hundred sixty-eight of the
internal revenue code of nineteen hundred eighty-six, as amended, of a
corporation described in paragraph one of this subdivision if both
corporations were sixty-five percent or more owned or controlled,
A. 10030 533
directly or indirectly by the same interests at the time of the reorgan-
ization.
An election under this paragraph must be made by the taxpayer on or
before the due date for filing its return, determined with regard to
extensions of time for filing, for the applicable taxable year. The
election to be taxed under subchapter two of this chapter shall be made
by the taxpayer by filing the return required pursuant to subdivision
one of section 11-605 of this chapter and the election to be taxed under
this subchapter shall be made by the taxpayer by filing the return
required pursuant to subdivision (a) of section 11-646 of this chapter.
Any election made pursuant to this paragraph shall be irrevocable and
shall apply to each subsequent taxable year beginning on or after Janu-
ary first, two thousand four and before January first, two thousand six,
provided that the stock ownership requirements described in subparagraph
(i) of this paragraph are met or such corporation described in subpara-
graph (ii) of this paragraph continues as a financial subsidiary.
(3) For purposes of this section, a financial subsidiary means a
corporation (i) sixty-five percent or more of whose voting stock is
owned or controlled, directly or indirectly by a banking corporation
described in paragraph one, two or three of subdivision (a) of this
section and (ii) is described in subdivision (g) of section five thou-
sand one hundred thirty-six-A of the revised statutes of the United
States or section forty-six of the federal deposit insurance act. For
purposes of this subchapter, the term "banking corporation" shall
include a corporation electing to be taxed under this subchapter pursu-
ant to paragraph two of this subdivision for so long as such election
shall be in effect.
(k) Transitional provisions relating to the enactment and implementa-
tion of the federal Gramm-Leach-Bliley act. (1) Notwithstanding anything
to the contrary contained in this section other than subdivision (m) of
this section, a corporation that was in existence before January first,
two thousand six and was subject to tax under subchapter two of this
chapter for its last taxable year beginning before January first, two
thousand six, shall continue to be taxable under subchapter two of this
chapter for all taxable years beginning on or after January first, two
thousand six and before January first, two thousand eight, provided,
however, this shall not apply to any taxable year during which such
corporation is a banking corporation described in paragraphs one through
eight of subdivision (a) of this section. Notwithstanding anything to
the contrary contained in this section other than subdivision (m) of
this section, a banking corporation that was in existence before January
first, two thousand six and was subject to tax under this subchapter for
its last taxable year beginning before January first, two thousand six,
shall continue to be taxable under this subchapter for all taxable years
beginning on or after January first, two thousand six and before January
first, two thousand eight. Provided, however, that nothing in this
subdivision shall prohibit a corporation that elected pursuant to subdi-
vision (d) of this section to be taxable under subchapter two of this
chapter from revoking that election in accordance with subdivision (d)
of this section.
For purposes of this paragraph, a corporation shall be considered to
be subject to tax under subchapter two of this chapter for a taxable
year if such corporation was not a taxpayer but was properly included in
a combined report filed pursuant to subdivision four of section 11-605
of this chapter for such taxable year and a corporation shall be consid-
ered to be subject to tax under this subchapter for a taxable year if
A. 10030 534
such corporation was not a taxpayer but was properly included in a
combined report filed pursuant to subdivision (f) or (g) of section
11-646 of this part for such taxable year. A corporation that was in
existence before January first, two thousand six but first becomes a
taxpayer in a taxable year beginning on or after January first, two
thousand six and before January first, two thousand eight, shall be
considered for purposes of this paragraph to have been subject to tax
under subchapter two of this chapter for its last taxable year beginning
before January first, two thousand six if such corporation would have
been subject to tax under such subchapter for such taxable year if it
had been a taxpayer during such taxable year. A corporation that was in
existence before January first, two thousand six but first becomes a
taxpayer in a taxable year beginning on or after January first, two
thousand six and before January first, two thousand eight, shall be
considered for purposes of this paragraph to have been subject to tax
under this subchapter for its last taxable year beginning before January
first, two thousand six if such corporation would have been subject to
tax under this subchapter for such taxable year if it had been a taxpay-
er during such taxable year.
(2) Notwithstanding anything to the contrary contained in this section
other than subdivision (m) of this section, a corporation formed on or
after January first, two thousand six and before January first, two
thousand eight may elect to be subject to tax under this subchapter or
under subchapter two of this chapter for its first taxable year begin-
ning on or after January first, two thousand six and before January
first, two thousand eight in which either (i) sixty-five percent or more
of its voting stock is owned or controlled, directly or indirectly by a
financial holding company, provided the corporation whose voting stock
is so owned or controlled is principally engaged in activities that are
described in paragraph four or five of subdivision (k) of section four
of the federal bank holding company act of nineteen hundred fifty-six,
as amended and the regulations promulgated pursuant to the authority of
such section or (ii) it is a financial subsidiary. An election under
this paragraph may not be made by a corporation described in paragraphs
one through eight of subdivision (a) of this section or in subdivision
(e) of this section. In addition, an election under this paragraph may
not be made by a corporation that is a party to a reorganization, as
defined in subsection (a) of section three hundred sixty-eight of the
internal revenue code of nineteen hundred eighty-six, as amended, of a
corporation described in paragraph one of this subdivision if both
corporations were sixty-five percent or more owned or controlled,
directly or indirectly by the same interests at the time of the reorgan-
ization.
An election under this paragraph must be made by the taxpayer on or
before the due date for filing its return, determined with regard to
extensions of time for filing, for the applicable taxable year. The
election to be taxed under subchapter two of this chapter shall be made
by the taxpayer by filing the return required pursuant to subdivision
one of section 11-605 of this chapter and the election to be taxed under
this subchapter shall be made by the taxpayer by filing the return
required pursuant to subdivision (a) of section 11-646 of this part. Any
election made pursuant to this paragraph shall be irrevocable and shall
apply to each subsequent taxable year beginning on or after January
first, two thousand six and before January first, two thousand eight,
provided that the stock ownership requirements described in subparagraph
A. 10030 535
(i) of this paragraph are met or such corporation described in subpara-
graph (ii) of this paragraph continues as a financial subsidiary.
(3) For purposes of this section, a financial subsidiary means a
corporation (i) sixty-five percent or more of whose voting stock is
owned or controlled, directly or indirectly by a banking corporation
described in paragraph one, two or three of subdivision (a) of this
section and (ii) is described in subdivision (g) of section five thou-
sand one hundred thirty-six-A of the revised statutes of the United
States or section forty-six of the federal deposit insurance act. For
purposes of this subchapter, the term "banking corporation" shall
include a corporation electing to be taxed under this subchapter pursu-
ant to paragraph two of this subdivision for so long as such election
shall be in effect.
(l) Transitional provisions relating to the enactment and implementa-
tion of the federal Gramm-Leach-Bliley act. (1) Notwithstanding anything
to the contrary contained in this section other than subdivision (m) of
this section, a corporation that was in existence before January first,
two thousand fourteen and was subject to tax under subchapter two of
this chapter for its last taxable year beginning before January first,
two thousand fourteen, shall continue to be taxable under such subchap-
ter for all taxable years beginning on or after January first, two thou-
sand fourteen and before January first, two thousand seventeen,
provided, however, this shall not apply to any taxable year during which
such corporation is a banking corporation described in paragraphs one
through eight of subdivision (a) of this section. Notwithstanding
anything to the contrary contained in this section other than subdivi-
sion (m) of this section, a banking corporation or corporation that was
in existence before January first, two thousand fourteen and was subject
to tax under this subchapter for its last taxable year beginning before
January first, two thousand fourteen, shall continue to be taxable under
this subchapter for all taxable years beginning on or after January
first, two thousand fourteen and before January first, two thousand
seventeen only if the corporation is a banking corporation as defined in
subdivision (a) of this section or the corporation satisfies the
requirements for a corporation to elect to be taxable under this
subchapter. Provided further, that nothing in this subdivision shall
prohibit a corporation that elected pursuant to subdivision (d) of this
section to be taxable under subchapter two of this chapter from revoking
that election in accordance with subdivision (d) of this section. For
purposes of this paragraph, a corporation shall be considered to be
subject to tax under subchapter two of this chapter for a taxable year
if such corporation was not a taxpayer but was properly included in a
combined report filed pursuant to subdivision four of section 11-605 of
this chapter for such taxable year and a corporation shall be considered
to be subject to tax under this subchapter for a taxable year if such
corporation was not a taxpayer but was properly included in a combined
report filed pursuant to subdivision (f) or (g) of section 11-646 of
this part for such taxable year. A corporation that was in existence
before January first, two thousand fourteen but first becomes a taxpayer
in a taxable year beginning on or after January first, two thousand
fourteen and before January first, two thousand seventeen, shall be
considered for purposes of this paragraph to have been subject to tax
under subchapter two of this chapter for its last taxable year beginning
before January first, two thousand fourteen if such corporation would
have been subject to tax under such subchapter for such taxable year if
it had been a taxpayer during such taxable year. A corporation that was
A. 10030 536
in existence before January first, two thousand fourteen but first
becomes a taxpayer in a taxable year beginning on or after January
first, two thousand fourteen and before January first, two thousand
seventeen, shall be considered for purposes of this paragraph to have
been subject to tax under this subchapter for its last taxable year
beginning before January first, two thousand fourteen if such corpo-
ration would have been subject to tax under this subchapter for such
taxable year if it had been a taxpayer during such taxable year.
(2) Notwithstanding anything to the contrary contained in this section
other than subdivision (m) of this section, a corporation formed on or
after January first, two thousand fourteen and before January first, two
thousand seventeen may elect to be subject to tax under this subchapter
or under subchapter two of this chapter for its first taxable year
beginning on or after January first, two thousand fourteen and before
January first, two thousand seventeen in which either (i) sixty-five
percent or more of its voting stock is owned or controlled, directly or
indirectly by a financial holding company, provided the corporation
whose voting stock is so owned or controlled is principally engaged in
activities that are described in paragraph four or five of subdivision
(k) of section four of the federal bank holding company act of nineteen
hundred fifty-six, as amended and the regulations promulgated pursuant
to the authority of such section or (ii) it is a financial subsidiary.
An election under this paragraph may not be made by a corporation
described in paragraphs one through eight of subdivision (a) of this
section or in subdivision (e) of this section. In addition, an election
under this paragraph may not be made by a corporation that is a party to
a reorganization, as defined in subsection (a) of section three hundred
sixty-eight of the internal revenue code of nineteen hundred eighty-six,
as amended, of a corporation described in paragraph one of this subdivi-
sion if both corporations were sixty-five percent or more owned or
controlled, directly or indirectly by the same interests at the time of
the reorganization.
An election under this paragraph must be made by the taxpayer on or
before the due date for filing its return, determined with regard to
extensions of time for filing, for the applicable taxable year. The
election to be taxed under subchapter two of this chapter shall be made
by the taxpayer by filing the return required pursuant to subdivision
one of section 11-605 of this chapter and the election to be taxed under
this subchapter shall be made by the taxpayer by filing the return
required pursuant to subdivision (a) of section 11-646 of this part. Any
election made pursuant to this paragraph shall be irrevocable and shall
apply to each subsequent taxable year beginning on or after January
first, two thousand fourteen and before January first, two thousand
seventeen, provided that the stock ownership and activities requirements
described in subparagraph (i) of this paragraph are met or such corpo-
ration described in subparagraph (ii) of this paragraph continues as a
financial subsidiary.
(3) For purposes of this section, a financial subsidiary means a
corporation (i) sixty-five percent or more of whose voting stock is
owned or controlled, directly or indirectly by a banking corporation
described in paragraph one, two or three of subdivision (a) of this
section and (ii) is described in subdivision (g) of section five thou-
sand one hundred thirty-six-A of the revised statutes of the United
States or section forty-six of the federal deposit insurance act. For
purposes of this subchapter, the term "banking corporation" shall
include a corporation electing to be taxed under this subchapter pursu-
A. 10030 537
ant to paragraph two of this subdivision for so long as such election
shall be in effect.
(m) (1) Notwithstanding anything in this part to the contrary, if any
of the conditions described in paragraph three of this subdivision apply
to a corporation that has made either the election to be taxable under
subchapter two of chapter six of this title pursuant to the Gramm-Leach-
Bliley transitional provisions in this section, or the election pursuant
to subdivision (d) of this section to continue to be taxable under
subchapter two of chapter six of this title, hereinafter the "electing
corporation", then such corporation shall be deemed to have revoked the
election as of the first day of the taxable year in which such condition
applied.
(2) Notwithstanding anything in this part to the contrary, if any of
the conditions described in paragraph three of this subdivision apply to
a corporation required to be taxable under subchapter two of chapter six
of this title pursuant to the Gramm-Leach-Bliley transitional provisions
in this section, hereinafter the "grandfathered corporation", such
corporation, if it is otherwise described in subdivision (a) of this
section, shall be taxable under this part as of the first day of the
taxable year in which such condition applied.
(3) The provisions of paragraph one and paragraph two of this subdivi-
sion shall apply if any of the following conditions exist or occur with
respect to the electing corporation or the grandfathered corporation in
a taxable year, including any short taxable year, beginning on or after
January first, two thousand nine:
(A) the corporation ceases to be a taxpayer under subchapter two of
chapter six of this title;
(B) the corporation becomes subject to the fixed dollar minimum tax
under clause four of subparagraph a of paragraph (E) of subdivision one
of section 11-604 of this chapter;
(C) the corporation has no wages or receipts allocable to the city
pursuant to subdivision three of section 11-604 of this chapter, or is
otherwise inactive; provided that this subparagraph shall not apply to a
corporation which is engaged in the active conduct of a trade or busi-
ness, or substantially all of the assets of which are stock and securi-
ties of corporations which are directly or indirectly controlled by it
and are engaged in the active conduct of a trade or business;
(D) sixty-five percent or more of the voting stock of the corporation
becomes owned or controlled directly by a corporation that acquired the
stock in a transaction, or series of related transactions, that quali-
fies as a purchase within the meaning of paragraph three of subsection
(h) of section three hundred thirty-eight of the internal revenue code
unless the corporation whose stock was acquired and the corporation
acquiring the stock were, immediately prior to such purchase, members of
the same affiliated group, as such term is defined in section fifteen
hundred four of the internal revenue code without regard to the exclu-
sions provided for in subsection (b) of such section; or
(E) the corporation, in a transaction or series of related trans-
actions, acquires assets, whether by contribution, purchase, or other-
wise, having an average value, determined in accordance with subdivision
two of section 11-604 of this chapter, or, if greater, a total tax
basis, in excess of forty percent of the average value, or, if greater,
the total tax basis, of all the assets of the corporation immediately
prior to such acquisition and as a result of such acquisition the corpo-
ration is principally engaged in a business that is different from the
business immediately prior to such acquisition, provided that such
A. 10030 538
different business is described in subparagraph (i) or (ii) of paragraph
nine of subdivision (a) of this section.
(n) Transitional provisions relating to the enactment and implementa-
tion of the federal Gramm-Leach-Bliley act. (1) Notwithstanding anything
to the contrary contained in this section other than subdivision (m) of
this section, a corporation that was in existence before January first,
two thousand seventeen and was subject to tax under subchapter two of
this chapter for its last taxable year beginning before January first,
two thousand seventeen, shall continue to be taxable under such subchap-
ter for all taxable years beginning on or after January first, two thou-
sand seventeen and before January first, two thousand twenty, provided,
however, this shall not apply to any taxable year during which such
corporation is a banking corporation described in paragraphs one through
eight of subdivision (a) of this section. Notwithstanding anything to
the contrary contained in this section other than subdivision (m) of
this section, a banking corporation or corporation that was in existence
before January first, two thousand seventeen and was subject to tax
under this subchapter for its last taxable year beginning before January
first, two thousand seventeen, shall continue to be taxable under this
subchapter for all taxable years beginning on or after January first,
two thousand seventeen and before January first, two thousand twenty
only if the corporation is a banking corporation as defined in subdivi-
sion (a) of this section or the corporation satisfies the requirements
for a corporation to elect to be taxable under this subchapter. Provided
further, that nothing in this subdivision shall prohibit a corporation
that elected pursuant to subdivision (d) of this section to be taxable
under subchapter two of this chapter from revoking that election in
accordance with subdivision (d) of this section.
For purposes of this paragraph, a corporation shall be considered to
be subject to tax under subchapter two of this chapter for a taxable
year if such corporation was not a taxpayer but was properly included in
a combined report filed pursuant to subdivision four of section 11-605
of this chapter for such taxable year and a corporation shall be consid-
ered to be subject to tax under this subchapter for a taxable year if
such corporation was not a taxpayer but was properly included in a
combined report filed pursuant to subdivision (f) or (g) of section
11-646 of this part for such taxable year. A corporation that was in
existence before January first, two thousand seventeen but first becomes
a taxpayer in a taxable year beginning on or after January first, two
thousand seventeen and before January first, two thousand twenty, shall
be considered for purposes of this paragraph to have been subject to tax
under subchapter two of this chapter for its last taxable year beginning
before January first, two thousand seventeen if such corporation would
have been subject to tax under such subchapter for such taxable year if
it had been a taxpayer during such taxable year. A corporation that was
in existence before January first, two thousand seventeen but first
becomes a taxpayer in a taxable year beginning on or after January
first, two thousand seventeen and before January first, two thousand
twenty, shall be considered for purposes of this paragraph to have been
subject to tax under this subchapter for its last taxable year beginning
before January first, two thousand seventeen if such corporation would
have been subject to tax under this subchapter for such taxable year if
it had been a taxpayer during such taxable year.
(2) Notwithstanding anything to the contrary contained in this section
other than subdivision (m) of this section, a corporation formed on or
after January first, two thousand seventeen and before January first,
A. 10030 539
two thousand twenty may elect to be subject to tax under this subchapter
or under subchapter two of this chapter for its first taxable year
beginning on or after January first, two thousand seventeen and before
January first, two thousand twenty in which either (i) sixty-five
percent or more of its voting stock is owned or controlled, directly or
indirectly by a financial holding company, provided the corporation
whose voting stock is so owned or controlled is principally engaged in
activities that are described in paragraphs four or five of subdivision
(k) of section four of the federal bank holding company act of nineteen
hundred fifty-six, as amended, and the regulations promulgated pursuant
to the authority of such section or (ii) it is a financial subsidiary.
An election under this paragraph may not be made by a corporation
described in paragraphs one through eight of subdivision (a) of this
section or in subdivision (e) of this section. In addition, an election
under this paragraph may not be made by a corporation that is a party to
a reorganization, as defined in subsection (a) of section three hundred
sixty-eight of the internal revenue code of nineteen hundred eighty-six,
as amended, of a corporation described in paragraph one of this subdivi-
sion if both corporations were sixty-five percent or more owned or
controlled, directly or indirectly, by the same interests at the time of
the reorganization.
An election under this paragraph shall be made by the taxpayer on or
before the due date for filing its return, determined with regard to
extensions of time for filing, for the applicable taxable year. The
election to be taxed under subchapter two of this chapter shall be made
by the taxpayer by filing the return required pursuant to subdivision
one of section 11-605 of this chapter and the election to be taxed under
this subchapter shall be made by the taxpayer by filing the return
required pursuant to subdivision (a) of section 11-646 of this part. Any
election made pursuant to this paragraph shall be irrevocable and shall
apply to each subsequent taxable year beginning on or after January
first, two thousand seventeen and before January first, two thousand
twenty, provided that the stock ownership and activities requirements
described in subparagraph (i) of this paragraph are met or such corpo-
ration described in subparagraph (ii) of this paragraph continues as a
financial subsidiary.
(3) For purposes of this subdivision, a financial subsidiary means a
corporation (i) sixty-five percent or more of whose voting stock is
owned or controlled, directly or indirectly by a banking corporation
described in paragraph one, two or three of subdivision (a) of this
section and (ii) is described in subdivision (g) of section five thou-
sand one hundred thirty-six-A of the revised statutes of the United
States or section forty-six of the federal deposit insurance act. For
purposes of this subchapter, the term "banking corporation" shall
include a corporation electing to be taxed under this subchapter pursu-
ant to paragraph two of this subdivision for so long as such election
shall be in effect.
§ 11-641 Computations of entire net income. (a) Entire net income
means total net income from all sources which shall be the same as the
entire taxable income, but not alternative minimum taxable income,
(1) which the taxpayer is required to report to the United States
treasury department, or
(2) which the taxpayer, in the case of a corporation which is exempt
from federal income tax, other than the tax on unrelated business taxa-
ble income imposed under section five hundred eleven of the internal
revenue code, but which is subject to tax under this part, would have
A. 10030 540
been required to report to the United States treasury department but for
such exemption, or
(3) which, in the case of a corporation organized under the laws of a
country other than the United States, is effectively connected with the
conduct of a trade or business within the United States as determined
under section eight hundred eighty-two of the internal revenue code, or
(4) which the taxpayer would have been required to report to the
United States treasury department if the taxpayer had not elected to be
taxed under subchapter s of chapter one of the internal revenue code, or
(5) which the taxpayer would have been required to report to the
United States treasury department if no election had been made to treat
the taxpayer as a qualified subchapter s subsidiary under paragraph
three of subsection (b) of section thirteen hundred sixty-one of the
internal revenue code, subject to the modifications and adjustments
provided in this section.
(b) Entire net income shall be computed without the deduction or
exclusion of:
(1) (A) in the case of a corporation organized under the laws of a
country other than the United States, (i) any part of any income from
dividends or interest on any kind of stock, securities or indebtedness,
but only if such income is treated as effectively connected with the
conduct of a trade or business in the United States pursuant to section
eight hundred sixty-four of the internal revenue code, (ii) any income
exempt from federal taxable income under any treaty obligation of the
United States, but only if such income would be treated as effectively
connected in the absence of such exemption, provided that such treaty
obligation does not preclude the taxation of such income by a state, or
(iii) any income which would be treated as effectively connected if such
income were not excluded from gross income pursuant to subsection (a) of
section one hundred three of the internal revenue code; (B) in the case
of any other corporation, any part of any income from dividends or
interest on any kind of stock, securities or indebtedness; (C) except
that for purposes of subparagraphs (A) and (B) of this paragraph there
shall be excluded any amounts treated as dividends pursuant to section
seventy-eight of the internal revenue code and any amounts described in
paragraphs eleven and twelve of subdivision (e) of this section;
(2) taxes on or measured by income or profits paid or accrued within
the taxable year to the United States, or any of its possessions or to
any foreign country, taxes on or measured by income or profits paid or
accrued to the state or any subdivision thereof, including taxes imposed
under article nine, nine-A, thirteen-A, twenty-four-A, twenty-four-B of
the tax law, or under article thirty-two of the tax law as such article
was in effect on December thirty-first, two thousand fourteen and any
tax imposed under this part or subchapter two or three-A of this chap-
ter;
(4) for taxable years beginning after December thirty-first, nineteen
hundred eighty-one, except with respect to property which is a qualified
mass commuting vehicle described in subparagraph (D) of paragraph eight
of subsection (f) of section one hundred sixty-eight of the internal
revenue code, relating to qualified mass commuting vehicles, any amount
which the taxpayer claimed as a deduction in computing its federal taxa-
ble income solely as a result of an election made pursuant to the
provisions of such paragraph eight as it was in effect for agreements
entered into prior to January first, nineteen hundred eighty-four;
(5) for taxable years beginning after December thirty-first, nineteen
hundred eighty-one, except with respect to property which is a qualified
A. 10030 541
mass commuting vehicle described in subparagraph (D) of paragraph eight
of subsection (f) of section one hundred sixty-eight of the internal
revenue code, relating to qualified mass commuting vehicles, any amount
which the taxpayer would have been required to include in the computa-
tion of its federal taxable income had it not made the election permit-
ted pursuant to such paragraph eight as it was in effect for agreements
entered into prior to January first, nineteen hundred eighty-four;
(6) in the case of property placed in service in taxable years begin-
ning before nineteen hundred ninety-four, for taxable years beginning
after December thirty-first, nineteen hundred eighty-one, except with
respect to property subject to the provisions of section two hundred
eighty-F of the internal revenue code and property subject to the
provisions of section one hundred sixty-eight of the internal revenue
code which is placed in service in this state in taxable years beginning
after December thirty-first, nineteen hundred eighty-four, the amount
allowable as a deduction determined under section one hundred sixty-
eight of the internal revenue code;
(7) upon the disposition of property to which paragraph seven of
subdivision (e) of this section applies, the amount, if any, by which
the aggregate of the amounts described in such paragraph seven attribut-
able to such property exceeds the aggregate of the amounts described in
paragraph six of this subdivision attributable to such property;
(11) for taxable years beginning before January first, two thousand
ten, in the case of a taxpayer subject to the provisions of subdivision
(c) of section five hundred eighty-five of the internal revenue code,
the amount allowed as a deduction pursuant to section one hundred
sixty-six of such code; and
(12) for taxable years beginning before January first, two thousand
ten, for taxpayers subject to the provisions of subdivision (i) of this
section, twenty percent of the excess of (A) the amount determined
pursuant to such subdivision (i) over (B) the amount which would have
been allowable had such institution maintained its bad debt reserve for
all taxable years on the basis of actual experience.
(13) for taxable years ending after September tenth, two thousand one,
in the case of qualified property described in paragraph two of
subsection k of section one hundred sixty-eight of the internal revenue
code, other than qualified resurgence zone property defined in subdivi-
sion (p) of this section, and other than qualified New York Liberty Zone
property described in paragraph two of subsection b of section fourteen
hundred-L of the internal revenue code, without regard to clause (i) of
subparagraph (C) of such paragraph, the amount allowable as a deduction
under section one hundred sixty-seven of the internal revenue code.
(14) for taxable years beginning on or after January first, two thou-
sand four, in the case of a taxpayer that is not an eligible farmer as
defined in subsection (n) of section six hundred six of the tax law, the
amount allowable as a deduction under sections one hundred seventy-nine,
one hundred sixty-seven and one hundred sixty-eight of the internal
revenue code with respect to a sport utility vehicle that is not a
passenger automobile as defined in paragraph five of subsection (d) of
section two hundred eighty-F of the internal revenue code.
(15) The amount of any deduction allowed pursuant to section one
hundred ninety-nine of the internal revenue code.
(16) The amount of any federal deduction for taxes imposed under arti-
cle twenty-three of the tax law.
(17) For taxable years beginning in two thousand nineteen and two
thousand twenty, the amount of the increase in the federal interest
A. 10030 542
deduction allowed pursuant to paragraph ten of subdivision (j) of
section one hundred sixty-three of the internal revenue code.
(c)(1) Except as otherwise provided in paragraphs two and three of
this subdivision, in the case of the sale or exchange of property by a
taxpayer which has been subject to part one or two of this subchapter
three where the property has a higher adjusted basis for city tax
purposes than for federal tax purposes, there shall be allowed as a
deduction from entire net income, the portion of any gain or loss on
such sale which equals the difference in such basis.
(2) In case of property of a taxpayer, other than a savings bank,
acquired prior to January first, nineteen hundred sixty-six, and
disposed of thereafter, the computation of entire net income shall be
modified as follows:
(i) no gain shall be deemed to have been derived if either the cost or
the fair market price or value on January first, nineteen hundred
sixty-six, exceeds the value realized;
(ii) no loss shall be deemed to have been sustained if either the cost
or the fair market price or value on January first, nineteen hundred
sixty-six, is less than the value realized;
(iii) where both the cost and the fair market price or value on Janu-
ary first, nineteen hundred sixty-six, are less than the value realized,
the basis for computing gain shall be the cost or the fair market price
or value on such date, whichever is higher;
(iv) where both the cost and the fair market price or value on January
first, nineteen hundred sixty-six, are in excess of the value realized,
the basis for computing loss shall be the cost or the fair market price
or value on such date, whichever is lower.
(3) In case of property of a savings bank acquired prior to January
first, nineteen hundred sixty-six, and disposed of thereafter, in
computing entire net income the basis of such property shall be the fair
market price or value on January first, nineteen hundred sixty-six.
(d) Entire net income shall not include any refund or credit of a tax
for which no exclusion or deduction was allowed in determining the
taxpayer's entire net income under this subchapter or subchapter two of
this chapter, or imposed by article twenty-three of the tax law for any
prior year.
(e) There shall be allowed as a deduction in determining entire net
income, to the extent not deductible in determining federal taxable
income:
(1) interest on indebtedness incurred or continued to purchase or
carry obligations or securities the income from which is subject to tax
under this part but exempt from federal income tax,
(2) ordinary and necessary expenses paid or incurred during the taxa-
ble year attributable to income which is subject to tax under this part
but exempt from federal income tax,
(3) the amortizable bond premium for the taxable year on any bond the
interest on which is subject to tax under this part but exempt from
federal income tax,
(4) that portion of wages or salaries paid or incurred for the taxable
year for which a deduction is not allowed pursuant to the provisions of
section two hundred eighty-C of the internal revenue code,
(5) for taxable years beginning after December thirty-first, nineteen
hundred eighty-one, except with respect to property which is a qualified
mass commuting vehicle described in subparagraph (D) of paragraph eight
of subsection (f) of section one hundred sixty-eight of the internal
revenue code, relating to qualified mass commuting vehicles, any amount
A. 10030 543
which is included in the taxpayer's federal taxable income solely as a
result of an election made pursuant to the provisions of such paragraph
eight as it was in effect for agreements entered into prior to January
first, nineteen hundred eighty-four,
(6) for taxable years beginning after December thirty-first, nineteen
hundred eighty-one, except with respect to property which is a qualified
mass commuting vehicle described in subparagraph (D) of paragraph eight
of subsection (f) of section one hundred sixty-eight of the internal
revenue code, relating to qualified mass commuting vehicles, any amount
which the taxpayer could have excluded from federal taxable income had
it not made the election provided for in such paragraph eight as it was
in effect for agreements entered into prior to January first, nineteen
hundred eighty-four,
(7) in the case of property placed in service in taxable years begin-
ning before nineteen hundred ninety-four, for taxable years beginning
after December thirty-first, nineteen hundred eighty-one, except with
respect to property subject to the provisions of section two hundred
eighty-F of the internal revenue code and property subject to the
provisions of section one hundred sixty-eight of the internal revenue
code which is placed in service in this state in taxable years beginning
after December thirty-first, nineteen hundred eighty-four, and provided
a deduction has not been excluded from entire net income pursuant to
paragraph four of subdivision (b) of this section, an amount with
respect to property which is subject to the provisions of section one
hundred sixty-eight of the internal revenue code equal to the amount
allowable as the depreciation deduction under section one hundred
sixty-seven of the internal revenue code as such section would have
applied to property placed in service on December thirty-first, nineteen
hundred eighty,
(8) upon the disposition of property to which paragraph seven of this
subdivision applies, the amount, if any, by which the aggregate of the
amounts described in paragraph six of subdivision (b) of this section
attributable to such property exceeds the aggregate of the amounts
described in paragraph seven of this subdivision attributable to such
property,
(9) any amount of money or other property received from the federal
deposit insurance corporation pursuant to subsection (c) of section
thirteen of the federal deposit insurance act, as amended, regardless of
whether any note or other instrument is issued in exchange therefor,
(10) any amount of money or other property received from the federal
savings and loan insurance corporation pursuant to paragraph one, two,
three or four of subsection (f) of section four hundred six of the
federal national housing act, as amended, regardless of whether any note
or other instrument is issued in exchange therefor,
(11) (i) seventeen percent of interest income from subsidiary capital,
and
(ii) sixty percent of dividend income from subsidiary capital, and
(iii) sixty percent of the amount by which gains from subsidiary capi-
tal exceed losses from subsidiary capital, to the extent such gains and
losses were taken into account in determining the entire taxable income
referred to in subdivision (a) of this section,
(12) twenty-two and one-half percent of interest income on obligations
of New York state, or of any political subdivision thereof, or on obli-
gations of the United States, other than obligations held for resale in
connection with regular trading activities,
A. 10030 544
(13) for the taxable years beginning before January first, two thou-
sand ten, in the case of a taxpayer which recaptures its balance of the
reserve for losses on loans for federal income tax purposes pursuant to
subdivision (c) of section five hundred eight-five of the internal
revenue code, any amount which is included in federal taxable income
pursuant to subdivision (c) of section five hundred eighty-five of such
code,
(14) for taxable years beginning before January first, two thousand
ten, in the case of a taxpayer subject to the provisions of subdivision
(c) of section five hundred eighty-five of the internal revenue code,
any amount which is included in federal taxable income as a result of a
recovery of a loan,
(15) for taxable years beginning before January first, two thousand
ten, in the case of a taxpayer which is currently or has previously been
subject to subdivision (h) of this section, any amount which is included
in federal taxable income pursuant to paragraph two of subdivision (e)
of section five hundred ninety-three of the internal revenue code, and
any other amount so included as a result of a recovery of or termination
from the use of a bad debt reserve as defined in section five hundred
ninety-three of such code as in existence on December thirty-first,
nineteen hundred ninety-five as a result of federal legislation enacted
after December thirty-first, nineteen hundred ninety-five,
(16) one hundred percent of dividend income from subsidiary capital
received during the taxable year if that dividend income is directly
attributable to a dividend from a captive REIT or captive RIC for which
the captive REIT or captive RIC claimed a federal dividends paid
deduction and that captive REIT or captive RIC is included in a combined
report or return under subchapter two or part four of subchapter three
of this chapter.
(f) Provided the taxpayer has not made an election pursuant to para-
graph two of subdivision (b) of section 11-642 of this part, there shall
be allowed as a deduction in determining entire net income, to the
extent not deductible in determining federal taxable income, the
adjusted eligible net income of an international banking facility deter-
mined as follows:
(1) The eligible net income of an international banking facility shall
be the amount remaining after subtracting from the eligible gross income
the applicable expenses.
(2) Eligible gross income shall be the gross income derived by an
international banking facility from:
(A) making, arranging for, placing or servicing loans to foreign
persons, provided, however, that in the case of a foreign person which
is an individual, or which is a foreign branch of a domestic corpo-
ration, other than a bank, or which is a foreign corporation or foreign
partnership which is eighty per centum or more owned or controlled,
either directly or indirectly, by one or more domestic corporations,
other than banks, domestic partnerships or resident individuals,
substantially all the proceeds of the loan are intended for use outside
of the United States;
(B) making or placing deposits with foreign persons which are banks or
foreign branches of banks, including foreign subsidiaries or foreign
branches of the taxpayer, or with other international banking facili-
ties; or
(C) entering into foreign exchange trading or hedging transactions
related to any of the transactions described in this paragraph.
A. 10030 545
(3) Applicable expenses shall be any expenses or other deductions
attributable, directly or indirectly, to the eligible gross income
described in paragraph two of this subdivision.
(4) Adjusted eligible net income shall be determined by subtracting
from eligible net income the ineligible funding amount, and by subtract-
ing from the amount then remaining the floor amount.
(5) The ineligible funding amount shall be the amount, if any, deter-
mined by multiplying eligible net income by a fraction, the numerator of
which is the average aggregate amount for the taxable year of all
liabilities, including deposits, and other sources of funds of the
international banking facility which were not owed to or received from
foreign persons, and the denominator of which is the average aggregate
amount for the taxable year of all liabilities, including deposits and
other sources of funds of the international banking facility.
(6) The floor amount shall be the amount, if any, determined by multi-
plying the amount remaining after subtracting the ineligible funding
amount from the eligible net income by a fraction, not greater than one,
which is determined as follows:
(A) The numerator shall be
(i) the percentage, as set forth in subparagraph (C) of this para-
graph, of the average aggregate amount of the taxpayer's loans to
foreign persons and deposits with foreign persons which are banks or
foreign branches of banks, including foreign subsidiaries or foreign
branches of the taxpayer, which loans and deposits were recorded in the
financial accounts of the taxpayer for its branches, agencies and
offices within the state for taxable years nineteen hundred seventy-
five, nineteen hundred seventy-six and nineteen hundred seventy-seven,
minus
(ii) the average aggregate amount of such loans and such deposits for
the taxable year of the taxpayer, other than such loans and deposits of
an international banking facility, provided, however, that in no case
shall the amount determined in this clause exceed the amount determined
in clause (i) of this subparagraph; and
(B) The denominator shall be the average aggregate amount of the loans
to foreign persons and deposits with foreign persons which are banks or
foreign branches of banks, including foreign subsidiaries or foreign
branches of the taxpayer, which loans and deposits were recorded in the
financial accounts of the taxpayer's international banking facility for
the taxable year.
(C) The percentage shall be one hundred percent for the first taxable
year in which the taxpayer establishes an international banking facility
and for the next succeeding four taxable years. The percentage shall be
eighty percent for the fifth, sixty percent for the sixth, forty percent
for the seventh, and twenty percent for the eighth taxable year next
succeeding the year such taxpayer establishes such international banking
facility, and zero in the ninth succeeding year and thereafter.
(7) In the event adjusted eligible net income is a loss, such loss
shall be added to entire net income.
(8) For purposes of this subdivision, the term "foreign person" means:
(A) an individual who is not a resident of the United States,
(B) a foreign corporation, a foreign partnership or a foreign trust,
as defined in section seventy-seven hundred one of the internal revenue
code, other than a domestic branch thereof,
(C) a foreign branch of a domestic corporation, including the taxpay-
er,
A. 10030 546
(D) a foreign government or an international organization or an agency
of either, or
(E) an international banking facility.
For purposes of this paragraph, the terms "foreign" and "domestic"
shall have the same meaning as set forth in section seventy-seven
hundred one of the internal revenue code.
(g) Entire net income shall be computed without regard to the
reduction in the basis of property that is required by section three
hundred sixty-two of the internal revenue code, because of any amount of
money or other property received from the federal deposit insurance
corporation pursuant to subsection (c) of section thirteen of the feder-
al deposit insurance act, as amended, or from the federal savings and
loan insurance corporation pursuant to paragraph one, two, three or four
of subsection (f) of section four hundred six of the federal national
housing act, as amended.
(h)(1) For purposes of this subdivision, a "thrift institution" is a
banking corporation which satisfies the requirements of subparagraphs
(A) and (B) of this paragraph.
(A) Such banking corporation must be (i) a banking corporation as
defined in paragraph one of subdivision (a) of section 11-640 of this
part created or authorized to do business under article six or ten of
the banking law, (ii) a banking corporation as defined in paragraph two
or seven of subdivision (a) of section 11-640 of this part which is
doing a business substantially similar to the business which a corpo-
ration or association may be created to do under article six or ten of
the banking law or any business which a corporation or association is
authorized by such article to do, or (iii) a banking corporation as
defined in paragraph four or five of subdivision (a) of section 11-640
of this part.
(B) At least sixty percent of the amount of the total assets, at the
close of the taxable year, of such banking corporation must consist of
(i) cash; (ii) obligations of the United States or of a state or poli-
tical subdivision thereof, and stock or obligations of a corporation
which is an instrumentality of the United States or of a state or poli-
tical subdivision thereof, but not including obligations the interest on
which is excludable from gross income under section one hundred three of
the internal revenue code; (iii) loans secured by a deposit or share of
a member; (iv) loans secured by an interest in real property which is,
or from the proceeds of the loan, will become, residential real property
or real property used primarily for church purposes, loans made for the
improvement of residential real property or real property used primarily
for church purposes, provided that for purposes of this clause, residen-
tial real property shall include single or multifamily dwellings, facil-
ities in residential developments dedicated to public use or property
used on a nonprofit basis for residents, and mobile homes not used on a
transient basis; (v) property acquired through the liquidation of
defaulted loans described in clause (iv) of this subparagraph; (vi) any
regular or residual interest in a REMIC, as such term is defined in
section eight hundred sixty-D of the internal revenue code and any regu-
lar interest in a FASIT, as such term is defined in section eight
hundred sixty-L of the internal revenue code, but only in the proportion
which the assets of such REMIC or FASIT consist of property described in
clauses (i) through (v) of this subparagraph, except that if ninety-five
percent or more of the assets of such REMIC or FASIT are assets
described in clauses (i) through (v) of this subparagraph, the entire
interest in the REMIC or FASIT shall qualify; (vii) any mortgage-backed
A. 10030 547
security which represents ownership of a fractional undivided interest
in a trust, the assets of which consist primarily of mortgage loans,
provided that the real property which serves as security for the loans
is, or from the proceeds of the loan, will become, the type of property
described in clause (iv) of this subparagraph and any collateralized
mortgage obligation, the security for which consists primarily of mort-
gage loans, provided that the real property which serves as security for
the loans is, or from the proceeds of the loan, will become, the type of
property described in clause (iv) of this subparagraph; (viii) certif-
icates of deposit in, or obligations of, a corporation organized under a
state law which specifically authorizes such corporation to insure the
deposits or share accounts of member associations; (ix) loans secured by
an interest in real property located within any urban renewal area to be
developed for predominantly residential use under an urban renewal plan
approved by the Secretary of Housing and Urban Development under part A
or part B of title I of the Housing Act of nineteen hundred forty-nine,
as amended, or located within any area covered by a program eligible for
assistance under section one hundred three of the Demonstration Cities
and Metropolitan Development Act of nineteen hundred sixty-six, as
amended, and loans made for the improvement of any such real property;
(x) loans secured by an interest in educational, health, or welfare
institutions or facilities, including structures designed or used prima-
rily for residential purposes for students, residents, and persons under
care, employees, or members of the staff of such institutions or facili-
ties; (xi) loans made for the payment of expenses of college or univer-
sity education or vocational training; (xii) property used by the
taxpayer in the conduct of business which consists principally of
acquiring the savings of the public and investing in loans; (xiii) loans
for which the taxpayer is the creditor and which are wholly secured by
loans described in clause (iv) of this subparagraph, but excluding loans
for which the taxpayer is the creditor to any banking corporation
described in paragraphs one through seven of subdivision (a) of section
11-640 of this part or a real estate investment trust, as such term is
defined in section eight hundred fifty-six of the internal revenue code,
and excluding loans which are treated by the taxpayer as subsidiary
capital for purposes of the deductions provided by paragraph eleven of
subdivision (e) of this section; (xiv) small business loans or small
farm loans located in low-income or moderate-income census tracts or
block numbering areas delineated by the United States bureau of the
census in the most recent decennial census; and (xv) community develop-
ment loans or community development investments. For purposes of clause
(xv) of this subparagraph, a "community development loan" is a loan that
(I) has as its primary purpose community development, (II) has not been
reported or collected by the taxpayer for consideration in the taxpay-
er's community reinvestment act evaluation pursuant to the federal
community reinvestment act of nineteen hundred seventy-seven, as
amended, or section twenty-eight-b of the banking law as a mortgage loan
described in clause (iv) of this subparagraph or a small business loan,
small farm loan, or consumer loan, (III) benefits the taxpayer's assess-
ment area or areas for purposes of the federal community reinvestment
act of nineteen hundred seventy-seven, as amended or section twenty-
eight-b of the banking law or a broader statewide or regional area that
includes the taxpayer's assessment area, and (IV) is identified in the
taxpayer's books and records as a community development loan for
purposes of its community reinvestment act evaluation pursuant to the
federal community reinvestment act of nineteen hundred seventy-seven, as
A. 10030 548
amended or section twenty-eight-b of the banking law. For purposes of
clause (xv) of this subparagraph, a "community development investment"
is an investment in a security which has as its primary purpose communi-
ty development and which is identified in the taxpayer's books and
records as a qualified investment for purposes of its community rein-
vestment act evaluation pursuant to the federal community reinvestment
act of nineteen hundred seventy-seven, as amended or section twenty-
eight-b of the banking law. For purposes of this subparagraph, "communi-
ty development" means (I) affordable housing, including multifamily
rental housing for low-income or moderate-income individuals; (II)
community services targeted to low-income or moderate-income individ-
uals; (III) activities that promote economic development by financing
businesses or farms that meet the size eligibility standards of the
small business administration's development company or small business
investment company programs or have gross annual revenues of one million
dollars or less; (IV) activities that revitalize or stabilize low-income
or moderate-income census tracts or block numbering areas delineated by
the United States bureau of the census in the most recent decennial
census; or (V) activities that seek to prevent defaults and/or foreclo-
sures in loans included in items (I) and (III) of this subclause.
(C) At the election of the taxpayer, the percentage specified in
subparagraph (B) of this paragraph shall be applied on the basis of the
average assets outstanding during the taxable year, in lieu of the close
of the taxable year. For purposes of clause (iv) of subparagraph (B) of
this paragraph, if a multifamily structure securing a loan is used in
part for nonresidential use purposes, the entire loan is deemed a resi-
dential real property loan if the planned residential use exceeds eighty
percent of the property's planned use, determined as of the time the
loan is made. Also, for purposes of clause (iv) of subparagraph (B) of
this paragraph, loans made to finance the acquisition or development of
land shall be deemed to be loans secured by an interest in residential
real property if there is a reasonable assurance that the property will
become residential real property within a period of three years from the
date of acquisition of such land; but this shall not apply for any taxa-
ble year unless, within such three year period, such land becomes resi-
dential real property. For purposes of determining whether any interest
in a REMIC qualifies under clause (vi) of subparagraph (B) of this para-
graph, any regular interest in another REMIC held by such REMIC shall be
treated as a loan described in clauses (i), (ii), (iii), (iv) or (v) of
subparagraph (B) of this paragraph under principles similar to the prin-
ciple of such clause (vi); except that if such REMICS are part of a
tiered structure, they shall be treated as one REMIC for purposes of
such clause (vi).
(2) For taxable years beginning before January first, two thousand
ten, a thrift institution must exclude from the computation of its
entire net income any amount allowed as a deduction for federal income
tax purposes pursuant to section one hundred sixty-six, five hundred
eight-five or five hundred ninety-three of the internal revenue code.
(3) For taxable years beginning before January first, two thousand
ten, a thrift institution shall be allowed as a deduction in computing
entire net income the amount of a reasonable addition to its reserve for
bad debts. This amount shall be equal to the sum of:
(A) the amount determined to be a reasonable addition to the reserve
for losses on nonqualifying loans, computed in the same manner as is
provided with respect to additions to the reserves for losses on loans
of banks under paragraph one of subdivision (i) of this section, plus
A. 10030 549
(B) the amount determined by the taxpayer to be a reasonable addition
to the reserve for losses on qualifying real property loans, but such
amount shall not exceed the amount determined under paragraph four or
five of this subdivision, whichever is the larger, but the amount deter-
mined under this subparagraph shall in no case be greater than the larg-
er of:
(i) the amount determined under paragraph five of this subdivision, or
(ii) the amount which, when added to the amount determined under
subparagraph (A) of this paragraph, equals the amount by which twelve
percent of the total deposits or withdrawable accounts of depositors of
the taxpayer at the close of such year exceeds the sum of its surplus,
undivided profits and reserves at the beginning of such year, taking
into account any portion thereof attributable to the period before the
first taxable year beginning after December thirty-first, nineteen
hundred fifty-one.
The taxpayer must include in its tax return for each year a computa-
tion of the amount of the addition to the bad debt reserve determined
under this subdivision. The use of a particular method in the return for
a taxable year is not a binding election by the taxpayer.
(4)(A) Subject to subparagraphs (B) and (C) of this paragraph, the
amount determined under this paragraph for the taxable year shall be an
amount equal to thirty-two percent of the entire net income for such
year.
(B) The amount determined under subparagraph (A) of this paragraph
shall be reduced, but not below zero, by the amount determined under
subparagraph (A) of paragraph three of this subdivision.
(C) The amount determined under this paragraph shall not exceed the
amount necessary to increase the balance at the close of the taxable
year of the reserve for losses on qualifying real property loans to six
percent of such loans outstanding at such time.
(D) For purposes of this paragraph, entire net income shall be
computed
(i) by excluding from income any amount included therein by reason of
subparagraph (B) of paragraph eight of this subdivision,
(ii) without regard to any deduction allowable for any addition to the
reserve for bad debts, and
(iii) by excluding from income an amount equal to the net gain for the
taxable year arising from the sale or exchange of stock of a corporation
or of obligations the interest on which is excludable from gross income
under section one hundred three of the internal revenue code.
(iv) Whenever a thrift institution is properly includable in a
combined return, entire net income, for purposes of this paragraph,
shall not exceed the lesser of the thrift institution's separately
computed entire net income as adjusted pursuant to clauses (i) through
(iii) of this subparagraph or the combined group's entire net income as
adjusted pursuant to clauses (i) through (iii) of this subparagraph.
(5) The amount determined under this paragraph for the taxable year
shall be computed in the same manner as is provided under paragraph one
of subdivision (i) of this section with respect to additions to reserves
for losses on loans of banks. Provided, however, that for any taxable
year beginning after nineteen hundred ninety-five, for purposes of such
computation, the base year shall be the later of (A) the last taxable
year beginning in nineteen hundred ninety-five or (B) the last taxable
year before the current year in which the amount determined under the
provisions of subparagraph (B) of paragraph three of this subdivision
exceeded the amount allowable under this paragraph.
A. 10030 550
(6) (A) (i) Each taxpayer described in paragraph one of this subdivi-
sion shall establish and maintain a New York reserve for losses on qual-
ifying real property loans, a New York reserve for losses on nonqualify-
ing loans and a supplemental reserve for losses on loans. Such reserves
shall be maintained for all subsequent taxable years that this subdivi-
sion applies to the taxpayer.
(ii) For purposes of this subdivision, such reserves shall be treated
as reserves for bad debts, but no deduction shall be allowed for any
addition to the supplemental reserve for losses on loans.
(iii) Except as provided in this clause, the balances of each such
reserve at the beginning of the first day of the first taxable year
beginning after December thirty-first, nineteen hundred ninety-five
shall be the same as the balances maintained for federal income tax
purposes in accordance with paragraph one of subdivision (c) of section
five hundred ninety-three of the internal revenue code as in existence
on December thirty-first, nineteen hundred ninety-five for the last day
of the last tax year beginning before January first, nineteen hundred
ninety-six. A taxpayer which maintained a New York reserve for loan
losses on qualifying real property loans in the last tax year beginning
before January first, nineteen hundred ninety-six shall have a continua-
tion of such New York reserve balance in lieu of the amount determined
under this clause.
(iv) Notwithstanding clause (ii) of this subparagraph, any amount
allocated to the reserve for losses on qualifying real property loans
pursuant to paragraph five of subdivision (c) of section five hundred
ninety-three of the internal revenue code as in effect immediately prior
to the enactment of the Tax Reform Act of nineteen hundred seventy six
shall not be treated as a reserve for bad debts for any purpose other
than determining the amount referred to in subparagraph (B) of paragraph
three of this subdivision, and for such purpose such amount shall be
treated as remaining in such reserve.
(B) Any debt becoming worthless or partially worthless in respect of a
qualifying real property loan shall be charged to the reserve for losses
on such loans and any debt becoming worthless or partially worthless in
respect of a nonqualifying loan shall be charged to the reserve for
losses on nonqualifying loans, except that any such debt may, at the
election of the taxpayer, be charged in whole or in part to the supple-
mental reserve for losses on loans.
(C) The New York reserve for losses on qualifying real property loans
shall be increased by the amount determined under subparagraph (B) of
paragraph three of this subdivision and the New York reserve for losses
on nonqualifying loans shall be increased by the amount determined under
subparagraph (A) of paragraph three of this subdivision.
(7)(A) For purposes of this subdivision, the term "qualifying real
property loan" shall mean any loan secured by an interest in improved
real property or secured by an interest in real property which is to be
improved out of the proceeds of the loan. Such term shall include any
mortgage-backed security which represents ownership of a fractional
undivided interest in a trust, the assets of which consist primarily of
mortgage loans, provided that the real property which serves as security
for the loans is, or from the proceeds of the loan, will become, the
type of property described in clauses (i) through (v) of subparagraph
(B) of paragraph one of this subdivision. However, such term shall not
include: (i) any loan evidenced by a security, as defined in subpara-
graph (C) of paragraph two of subdivision (g) of section one hundred
sixty-five of the internal revenue code; (ii) any loan, whether or not
A. 10030 551
evidenced by a security, as defined in such subparagraph (C) of para-
graph two of subdivision (g) of section one hundred sixty-five, the
primary obligor of which is (I) a government or political subdivision or
instrumentality thereof, (II) a banking corporation, or (III) any corpo-
ration sixty-five percent or more of whose voting stock is owned or
controlled, directly or indirectly, by the taxpayer or by a banking
corporation or bank holding company that owns or controls, directly or
indirectly, sixty-five percent or more of the voting stock of the
taxpayer; (iii) any loan, to the extent secured by a deposit in or share
of the taxpayer; or (iv) any loan which, within a sixty-day period
beginning in one taxable year of the creditor and ending in its next
taxable year, is made or acquired and then repaid or disposed of, unless
the transactions by which such loan was made or acquired and then repaid
or disposed of are established to be for bona fide business purposes.
(B) For purposes of this subdivision, the term "nonqualifying loan"
shall mean any loan which is not a qualifying real property loan.
(C) For purposes of this subdivision, the term "loan" shall mean debt,
as the term "debt" is used in section one hundred sixty-six of the
internal revenue code.
(D) A regular or residual interest in a REMIC, as such term is defined
in section eight hundred sixty-D of the internal revenue code, shall be
treated as a qualifying real property loan, except that, if less than
ninety-five percent of the assets of such REMIC are qualifying real
property loans, determined as if the taxpayer held the assets of the
REMIC, such interest shall be so treated only in the proportion which
the assets of such REMIC consist of such loans. For purposes of deter-
mining whether any interest in a REMIC qualifies under the provisions of
this paragraph, any interest in another REMIC held by such REMIC shall
be treated as a qualifying real property loan under principles similar
to the principles of this paragraph, except that if such REMICS are part
of a tiered structure, they shall be treated as one REMIC for purposes
of this paragraph.
(8)(A) Any distribution of property, as defined in subdivision (a) of
section three hundred seventeen of the internal revenue code, by a
thrift institution to a shareholder with respect to its stock, if such
distribution is not allowable as a deduction under section five hundred
ninety-one of such code, shall be treated as made
(i) first out of its New York earnings and profits accumulated in
taxable years beginning after December thirty-first, nineteen hundred
fifty-one, to the extent thereof,
(ii) then out of the New York reserve for losses on qualifying real
property loans, to the extent additions to such reserve exceed the addi-
tions which would have been allowed under paragraph five of this subdi-
vision,
(iii) then out of the supplemental reserve for losses on loans, to the
extent thereof,
(iv) then out of such other accounts as may be proper.
This subparagraph shall apply in the case of any distribution in redemp-
tion of stock or in partial or complete liquidation of a thrift institu-
tion, except that any such distribution shall be treated as made first
out of the amount referred to in clause (ii) of this subparagraph,
second out of the amount referred to in clause (iii) of this subpara-
graph, third out of the amount referred to in clause (i) of this subpar-
agraph and then out of such other accounts as may be proper. This
subparagraph shall not apply to any transaction to which section three
hundred eighty-one of such code, relating to carryovers and certain
A. 10030 552
corporate acquisitions, applies, or to any distribution to the federal
savings and loan insurance corporation or the federal deposit insurance
corporation in redemption of an interest in an association or institu-
tion, if such interest was originally received by the federal savings
and loan insurance corporation or the federal deposit insurance corpo-
ration in exchange for financial assistance pursuant to subdivision (f)
of section four hundred six of the federal national housing act or
pursuant to subsection (c) of section thirteen of the federal deposit
insurance act.
(B) If any distribution is treated under subparagraph (A) of this
paragraph as having been made out of the reserves described in clauses
(ii) and (iii) of such subparagraph, the amount charged against such
reserve shall be the amount which, when reduced by the amount of tax
imposed under the internal revenue code and attributable to the inclu-
sion of such amount in gross income, is equal to the amount of such
distribution; and the amount so charged against such reserve shall be
included in the entire net income of the taxpayer.
(C) (i) For purposes of clause (ii) of subparagraph (A) of this para-
graph, additions to the New York reserve for losses on qualifying real
property loans for the taxable year in which the distribution occurs
shall be taken into account.
(ii) For purposes of computing under this subdivision the amount of a
reasonable addition to the New York reserve for losses on qualifying
real property loans for any taxable year, the amount charged during any
year to such reserve pursuant to the provisions of subparagraph (B) of
this paragraph shall not be taken into account.
(9) A taxpayer which maintains a New York reserve for losses on quali-
fying real property loans and which ceases to meet the definition of a
thrift institution as defined in paragraph one of this subdivision, must
include in its entire net income for the last taxable year such para-
graph applied the excess of its New York reserve for losses on qualify-
ing real property loans over the greater of (A) its reserve for losses
on qualifying real property loans as of the last day of the last taxable
year such reserve is maintained for federal income tax purposes or (B)
the balance of the New York reserve for losses on qualifying real prop-
erty loans which would be allowable to the taxpayer for the last taxable
year such taxpayer met such definition of a thrift institution if the
taxpayer had computed its reserve balance pursuant to the method
described in subparagraph (A) of paragraph one of subdivision (i) of
this section.
(i) (1) For taxable years beginning before January first, two thousand
ten, a taxpayer subject to the provisions of subdivision (c) of section
five hundred eighty-five of the internal revenue code and not subject to
subdivision (h) of this section may, in computing entire net income,
deduct an amount equal to or less than the amount determined pursuant to
subparagraph (A) of this paragraph or subparagraph (B) of this para-
graph, whichever is greater. Provided, however, in no event shall the
deduction be less than the amount determined pursuant to such subpara-
graph (A).
(A) The amount determined pursuant to this subparagraph shall be the
amount necessary to increase the balance of its New York reserve for
losses on loans, at the close of the taxable year, to the amount which
bears the same ratio to loans outstanding at the close of the taxable
year as (i) the total bad debts sustained during the taxable year and
the five preceding taxable years, or, with the approval of the commis-
sioner of finance, a shorter period, adjusted for recoveries of bad
A. 10030 553
debts during such period, bears to (ii) the sum of the loans outstanding
at the close of such six or fewer taxable years.
(B)(i) The amount determined pursuant to this subparagraph shall be
the amount necessary to increase the balance of its New York reserve for
losses on loans, at the close of the taxable year, to the lower of:
(I) the balance of the reserve at the close of the base year, or
(II) if the amount of loans outstanding at the close of the taxable
year is less than the amount of loans outstanding at the close of the
base year, the amount which bears the same ratio to loans outstanding at
the close of the taxable year as the balance of the reserve at the close
of the base year bears to the amount of loans outstanding at the close
of the base year.
(ii) For purposes of this paragraph, the base year shall be (I) for
taxable years beginning in nineteen hundred eighty-seven, the last taxa-
ble year before the most recent adoption of the experience method for
federal income tax purposes or for purposes of this part, whichever is
earlier, and (II) for taxable years beginning after nineteen hundred
eighty-seven, the last taxable year beginning before nineteen hundred
eighty-eight.
(2) (A) For taxable years beginning before January first, two thousand
ten, each taxpayer described in paragraph one of this subdivision shall
establish and maintain a New York reserve for losses on loans. Such
reserve shall be maintained for all subsequent taxable years. The
balance of the New York reserve for losses on loans at the beginning of
the first day of the first taxable year the taxpayer becomes subject to
this subdivision shall be the same as the balance at the beginning of
such day of the reserve for losses on loans maintained for federal
income tax purposes. The New York reserve for losses on loans shall be
reduced by an amount equal to the deduction allowed, but not more than
the amount allowable, for worthless debts for federal income tax
purposes pursuant to section one hundred sixty-six of the internal
revenue code plus the amount, if any, charged against its reserve for
losses on loans pursuant to paragraph four of subdivision (c) of section
five hundred eighty-five of such code.
(B) For purposes of subparagraph (A) of this paragraph, a taxpayer
which had previously been subject to the provisions of subdivision (h)
of this section shall establish a New York reserve for losses on loans
equal to the sum of (i) the greater of (I) the balance of its federal
reserve for losses on qualifying real property loans as of the first day
of the first taxable year the taxpayer becomes subject to the provisions
of this subdivision or (II) the greater of the amounts determined under
subparagraphs (A) and (B) of paragraph nine of subdivision (h) of this
section in the year such paragraph applied to the taxpayer, (ii) the
greater of (I) the balance in its federal reserve for losses on nonqual-
ifying loans as of the first day of the first taxable year the taxpayer
becomes subject to this subdivision or (II) the balance in its New York
reserve for losses on nonqualifying loans as of the last date the
taxpayer was subject to the provisions of subdivision (h) of this
section, and (iii) the balance in its supplemental reserve for losses on
loans as of the last date the taxpayer was subject to the provisions of
subdivision (h) of this section.
(3) The determination and treatment of the New York reserve balance,
including any additions thereto, subtractions therefrom, or recapture
thereof, for:
A. 10030 554
(A) any banking corporation which was subject to tax for federal
income tax purposes but not subject to tax under this part for prior
taxable years,
(B) any taxpayer which ceases to be subject to tax under this part, or
(C) any other unusual circumstances,
shall be determined by the commissioner of finance. Provided, however,
any banking corporation which was subject to tax for federal income tax
purposes but not subject to tax under this part for prior taxable years
shall have as its opening New York reserve for losses on loans the
amount determined by applying the provisions of subparagraph (A) of
paragraph one of this subdivision to loans outstanding at the close of
its last taxable year for federal income tax purposes ending prior to
the first taxable year for which the taxpayer is subject to tax under
this part and provided, further, that the provisions of subparagraph (B)
of paragraph one of this subdivision shall not apply.
(j) (1) For any taxable year beginning in nineteen hundred seventy-
three or for any period for which a tax is imposed under subdivision (b)
of section 11-639 of this part, entire net income shall be computed
without regard to the amount allowable as a deduction for bad debts or
an addition to a reserve for bad debts in computing federal taxable
income for the taxable year, but, in lieu thereof, a deduction shall be
allowed to the extent and in the manner authorized by subdivision five
of section 11-621 or subdivision (e) of section 11-629 of this subchap-
ter as if such provisions were set forth in full in this part and by
treating such provisions as applicable under this part.
(2) In the case of property placed in service prior to January first,
nineteen hundred seventy-three, for which the taxpayer properly adopted
a different method of computing depreciation under section 11-621 or
section 11-629 of this subchapter than was adopted for federal income
tax purposes with respect to such property, entire net income under this
part shall be computed without regard to the amount allowable as a
deduction for depreciation of such property in computing federal taxable
income for the taxable year but, in lieu thereof, shall be computed as
if such deduction were determined by the method of depreciation adopted
with respect to such property under section 11-621 or 11-629 of this
subchapter.
(3) In computing entire net income, the amount allowable as a
deduction for charitable contributions for federal income tax purposes
shall be: (a) increased for the first taxable year or period beginning
in nineteen hundred seventy-three by the amount of any contributions
made during such taxable year or period which were not allowable as a
deduction for charitable contributions for federal income tax purposes
for such taxable year or period because of an election pursuant to para-
graph two of subsection (a) of section one hundred seventy of the inter-
nal revenue code and which were not deductible in computing the tax due
under part one or two of this subchapter, and (b) decreased by any
amount allowed as a deduction for federal income tax purposes for the
taxable year under section one hundred seventy of the internal revenue
code as a carryover of excess contributions which are not made in such
taxable year and which were deductible in computing the tax due under
part one or two of this subchapter.
(4) There shall be excluded from the computation of entire net income
any amount allowed as a deduction for federal income tax purposes for
the taxable year under section twelve hundred twelve of the internal
revenue code as a capital loss carry forward to the taxable year, which
A. 10030 555
was deductible as a loss in computing the tax due under part one or two
of this subchapter.
(5) There shall be excluded from the computation of entire net income
the amount of any income or gain from the sale of real or personal prop-
erty which is includible in determining federal taxable income for the
taxable year pursuant to the installment method under section four
hundred fifty-three of the internal revenue code, to the extent that
such income or gain was includible in the computation of the tax due
under part one or two of this subchapter.
(6) To the extent not otherwise provided in this part, there shall be
excluded from entire net income the amount necessary to prevent the
taxation under this part of any other amount of income or gain which was
properly included in income or gain and was taxable under part one or
two of this subchapter and there shall be disallowed as a deduction in
computing entire net income any amount which was allowed as a deduction
in computing the tax due under such parts.
(k) (1) At the election of the taxpayer, there shall be deducted from
the portion of its entire net income allocated within the city, depreci-
ation with respect to any property such as described in paragraph two of
this subdivision, not exceeding twice the depreciation allowed with
respect to the same property for federal income tax purposes. Such
deduction shall be allowed only upon condition that entire net income be
computed without any deduction for depreciation or amortization of the
same property, and the total of all deductions allowed under parts one
and two of this subchapter three and this part in any taxable year or
years with respect to the depreciaton of any such property shall not
exceed its cost or other basis.
(2) Such deduction shall be allowed only with respect to tangible
property which is depreciable pursuant to section one hundred sixty-sev-
en of the internal revenue code, having a situs in this city and used in
the taxpayer's business, (i) constructed, reconstructed or erected after
December thirty-first, nineteen hundred sixty-five, pursuant to a
contract which was, on or before December thirty-first, nineteen hundred
sixty-seven, and at all times thereafter, binding on the taxpayer or,
property, the physical construction, reconstruction or erection of which
began on or before December thirty-first, nineteen hundred sixty-seven
or which began after such date pursuant to an order placed on or before
December thirty-first, nineteen hundred sixty-seven, and then only with
respect to that portion of the basis thereof which is properly attribut-
able to such construction, reconstruction or erection after December
thirty-first, nineteen hundred sixty-five, or (ii) acquired after Decem-
ber thirty-first, nineteen hundred sixty-five, pursuant to a contract
which was, on or before December thirty-first, nineteen hundred sixty-
seven, and at all times thereafter, binding on the taxpayer or pursuant
to an order placed on or before December thirty-first, nineteen hundred
sixty-seven, by purchase as defined in subdivision (d) of section one
hundred seventy-nine of the internal revenue code, if the original use
of such property commenced with the taxpayer, commenced in this city and
commenced after December thirty-first, nineteen hundred sixty-five, or
(iii) acquired, constructed, reconstructed, or erected subsequent to
December thirty-first, nineteen hundred sixty-seven, if such acquisi-
tion, construction, reconstruction or erection is pursuant to a plan of
the taxpayer which was in existence December thirty-first, nineteen
hundred sixty-seven and not thereafter substantially modified, and such
acquisition, construction, reconstruction or erection would qualify
under the rules in paragraph four, five or six of subsection (h) of
A. 10030 556
section forty-eight of the internal revenue code provided all references
in such paragraphs four, five and six to the dates October nine, nine-
teen hundred sixty-six, and October ten, nineteen hundred sixty-six,
shall be read as December thirty-first, nineteen hundred sixty-seven. A
taxpayer shall be allowed a deduction under clause (i), (ii) or (iii) of
this paragraph only if the tangible property shall be delivered or the
construction, reconstruction or erection shall be completed on or before
December thirty-first, nineteen hundred sixty-nine, except in the case
of tangible property which is acquired, constructed, reconstructed or
erected pursuant to a contract which was, on or before December thirty-
first, nineteen hundred sixty-seven, and at all times thereafter, bind-
ing on the taxpayer. Provided, however, for any taxable year beginning
on or after January first, nineteen hundred sixty-eight, a taxpayer
shall not be allowed a deduction under paragraph one of this subdivision
with respect to tangible personal property leased by it to any other
person or corporation, provided, that any contract or agreement to lease
or rent or for a license to use such property shall be considered a
lease. With respect to property which the taxpayer uses itself for
purposes other than leasing for part of a taxable year and leases for a
part of a taxable year, the taxpayer shall be allowed a deduction under
paragraph one of this subdivision in proportion to the part of the year
it uses such property.
(3) If the deduction allowable for any taxable year pursuant to this
subdivision exceeds the portion of the taxpayer's entire net income
allocated to this city for such year, the excess may be carried over to
the following taxable year or years and may be deducted from the portion
of the taxpayer's entire net income allocated to this city for such year
or years.
(4) In any taxable year when property is sold or otherwise disposed
of, with respect to which a deduction has been allowed pursuant to this
subdivision, subdivision twelve of section 11-621 or subdivision (j) of
section 11-629 of this subchapter, the gain or loss entering into the
computation of federal taxable income shall be disregarded in computing
entire net income, and there shall be added or subtracted from the
portion of entire net income allocated within the city the gain or loss
upon such sale or other disposition. In computing such gain or loss the
basis of the property sold or disposed of shall be adjusted to reflect
the deduction allowed with respect to such property pursuant to para-
graph one of this subdivision. Provided, however, that no loss shall be
recognized for the purposes of this paragraph with respect to a sale or
other disposition of property to a person whose acquisition thereof is
not a purchase as defined in subdivision (d) of section one hundred
seventy-nine of the internal revenue code.
(k-1) A net operating loss deduction shall be allowed which shall be
presumably the same as the net operating loss deduction allowed under
section one hundred seventy-two of the internal revenue code, except
that in every instance where such deduction is allowed under this
subchapter:
(1) any net operating loss included in determining such deduction
shall be adjusted to reflect the inclusions and exclusions from entire
net income required by the other provisions of this section;
(2) such deduction shall not include any net operating loss sustained
during any taxable year beginning prior to January first, two thousand
nine, or during any taxable year in which the taxpayer was not subject
to the tax imposed by this subchapter;
A. 10030 557
(3) such deduction shall not exceed the deduction for the taxable year
allowed under section one hundred seventy-two of the internal revenue
code augmented by the excess of the amount allowed as a deduction pursu-
ant to subdivision (h) or (i) of this section, whichever is applicable,
over the amount allowed as a deduction pursuant to section one hundred
sixty-six or five hundred eighty-five of the internal revenue code, for
each taxable year in which the taxpayer had a net operating loss which
is carried to the taxable year of the deduction under this provision, in
the aggregate, except to the extent such excess was previously deducted
in computing entire net income; and
(4) the net operating loss deduction allowed under section one hundred
seventy-two of the internal revenue code shall for purposes of this
subdivision be determined as if the taxpayer had elected under such
section to relinquish the entire carryback period with respect to net
operating losses.
(k-2) Notwithstanding any other provision of this section to the
contrary, for taxable years beginning before January first, two thousand
twenty-one, any amendment to section one hundred seventy-two of the
internal revenue code made after March first, two thousand twenty shall
not apply to this part.
(1) If the period covered by a return under this part is other than
the period covered by the return to the United States treasury depart-
ment, entire net income and alternative entire net income shall be
determined by multiplying the taxable income reported to such depart-
ment, as adjusted pursuant to the provisions of this part, by the number
of calendar months or major parts thereof covered by the return under
this part and dividing by the number of calendar months or major parts
thereof covered by the return to such department. If it shall appear
that such method of determining entire net income or alternative entire
net income does not properly reflect the taxpayer's income during the
period covered by the return under this part, the commissioner of
finance shall be authorized in his or her discretion to determine such
entire net income or alternative entire net income solely on the basis
of the taxpayer's income during the period covered by its return under
this part.
(m) The commissioner of finance, may, whenever necessary in order to
properly reflect the entire net income of any taxpayer, determine the
year or period in which any item of income or deduction shall be
included, without regard to the method of accounting employed by the
taxpayer.
(n) Notwithstanding any other provision of this subchapter, for taxa-
ble years beginning on or after August first, two thousand two, in the
case of a taxpayer that is a partner in a partnership subject to the tax
imposed by chapter eleven of this title as a utility, as defined in
subdivision six of section 11-1101 of such chapter, entire net income
shall not include the taxpayer's distributive or pro rata share for
federal income tax purposes of any item of income, gain, loss or
deduction of such partnership, or any item of income, gain, loss or
deduction of such partnership that the taxpayer is required to take into
account separately for federal income tax purposes.
(n-1) for taxable years ending after September tenth, two thousand
one, in the case of qualified property described in paragraph two of
subsection k of section one hundred sixty-eight of the internal revenue
code, other than qualified resurgence zone property described in subdi-
vision (p) of this section, and other than qualified New York Liberty
Zone property described in paragraph two of subsection b of section
A. 10030 558
fourteen hundred-L of the internal revenue code, without regard to
clause (i) of subparagraph (C) of such paragraph, a taxpayer shall be
allowed with respect to such property the depreciation deduction allow-
able under section one hundred sixty-seven as such section would have
applied to such property had it been acquired by the taxpayer on Septem-
ber tenth, two thousand one, provided, however, that for taxable years
beginning on or after January first, two thousand four, in the case of a
passenger motor vehicle or a sport utility vehicle subject to the
provisions of subdivision (r) of this section, the limitation under
clause (i) of subparagraph (A) of paragraph one of subdivision (a) of
section two hundred eighty-F of the internal revenue code applicable to
the amount allowed as a deduction under this paragraph shall be deter-
mined as of the date such vehicle was placed in service and not as of
September tenth, two thousand one.
(o) for taxable years ending after September tenth, two thousand one,
upon the disposition of property to which subdivision (n) of this
section applies, the amount of any gain or loss includible in entire net
income shall be adjusted to reflect the inclusions and exclusions from
entire net income pursuant to paragraph thirteen of subdivision (b) and
subdivision (n) of this section attributable to such property.
(p) for purposes of subdivisions (n) and (o) of this section, quali-
fied resurgence zone property shall mean qualified property described in
paragraph two of subsection k of section one hundred sixty-eight of the
internal revenue code substantially all of the use of which is in the
resurgence zone, as defined below, and is in the active conduct of a
trade or business by the taxpayer in such zone, and the original use of
which in the resurgence zone commences with the taxpayer after September
tenth, two thousand one. The resurgence zone shall mean the area of New
York county bounded on the south by a line running from the intersection
of the Hudson River with the Holland Tunnel, and running thence east to
Canal Street, then running along the centerline of Canal Street to the
intersection of the Bowery and Canal Street, running thence in a south-
easterly direction diagonally across Manhattan Bridge Plaza, to the
Manhattan Bridge, and thence along the centerline of the Manhattan
Bridge to the point where the centerline of the Manhattan Bridge would
intersect with the easterly bank of the East River, and bounded on the
north by a line running from the intersection of the Hudson River with
the Holland Tunnel and running thence north along West Avenue to the
intersection of Clarkson Street then running east along the centerline
of Clarkson Street to the intersection of Washington Avenue, then
running south along the centerline of Washington Avenue to the inter-
section of West Houston Street, then east along the centerline of West
Houston Street, then at the intersection of the Avenue of the Americas
continuing east along the centerline of East Houston Street to the east-
erly bank of the East River.
(q) Related members expense add back. (1) Definitions. (A) Related
member. "Related member" means a related person as defined in subpara-
graph (c) of paragraph three of subsection (b) of section four hundred
sixty-five of the internal revenue code, except that "fifty percent"
shall be substituted for "ten percent".
(B) Effective rate of tax. "Effective rate of tax" means, as to any
city, the maximum statutory rate of tax imposed by the city on or meas-
ured by a related member's net income multiplied by the apportionment
percentage, if any, applicable to the related member under the laws of
said jurisdiction. For purposes of this definition, the effective rate
of tax as to any city is zero where the related member's net income tax
A. 10030 559
liability in said city is reported on a combined or consolidated return
including both the taxpayer and the related member where the reported
transactions between the taxpayer and the related member are eliminated
or offset. Also, for purposes of this definition, when computing the
effective rate of tax for a city in which a related member's net income
is eliminated or offset by a credit or similar adjustment that is
dependent upon the related member either maintaining or managing intan-
gible property or collecting interest income in that city, the maximum
statutory rate of tax imposed by said city shall be decreased to reflect
the statutory rate of tax that applies to the related member as effec-
tively reduced by such credit or similar adjustment.
(C) Royalty payments. Royalty payments are payments directly connected
to the acquisition, use, maintenance or management, ownership, sale,
exchange, or any other disposition of licenses, trademarks, copyrights,
trade names, trade dress, service marks, mask works, trade secrets,
patents and any other similar types of intangible assets as determined
by the commissioner of finance, and include amounts allowable as inter-
est deductions under section one hundred sixty-three of the internal
revenue code to the extent such amounts are directly or indirectly for,
related to or in connection with the acquisition, use, maintenance or
management, ownership, sale, exchange or disposition of such intangible
assets.
(D) Valid business purpose. A valid business purpose is one or more
business purposes, other than the avoidance or reduction of taxation,
which alone or in combination constitute the primary motivation for some
business activity or transaction, which activity or transaction changes
in a meaningful way, apart from tax effects, the economic position of
the taxpayer. The economic position of the taxpayer includes an increase
in the market share of the taxpayer, or the entry by the taxpayer into
new business markets.
(2) Royalty expense add backs. (A) For the purpose of computing entire
net income, a taxpayer must add back royalty payments directly or indi-
rectly paid, accrued, or incurred in connection with one or more direct
or indirect transactions with one or more related members during the
taxable year to the extent deductible in calculating federal taxable
income.
(B) Exceptions. (i) The adjustment required in this subdivision shall
not apply to the portion of the royalty payment that the taxpayer estab-
lishes, by clear and convincing evidence of the type and in the form
specified by the commissioner of finance, meets all of the following
requirements: (I) the related member was subject to tax in this city or
another city within the United States or a foreign nation or some combi-
nation thereof on a tax base that included the royalty payment paid,
accrued or incurred by the taxpayer; (II) the related member during the
same taxable year directly or indirectly paid, accrued or incurred such
portion to a person that is not a related member; and (III) the trans-
action giving rise to the royalty payment between the taxpayer and the
related member was undertaken for a valid business purpose.
(ii) The adjustment required in this subdivision shall not apply if
the taxpayer establishes, by clear and convincing evidence of the type
and in the form specified by the commissioner of finance, that: (I) the
related member was subject to tax on or measured by its net income in
this city or another city within the United States, or some combination
thereof; (II) the tax base for such tax included the royalty payment
paid, accrued or incurred by the taxpayer; and (III) the aggregate
effective rate of tax applied to the related member in those jurisdic-
A. 10030 560
tions is no less than eighty percent of the statutory rate of tax that
applied to the taxpayer under section 11-643.5 of this part for the
taxable year.
(iii) The adjustment required in this subdivision shall not apply if
the taxpayer establishes, by clear and convincing evidence of the type
and in the form specified by the commissioner of finance, that: (I) the
royalty payment was paid, accrued or incurred to a related member organ-
ized under the laws of a country other than the United States; (II) the
related member's income from the transaction was subject to a comprehen-
sive income tax treaty between such country and the United States; (III)
the related member was subject to tax in a foreign nation on a tax base
that included the royalty payment paid, accrued or incurred by the
taxpayer; (IV) the related member's income from the transaction was
taxed in such country at an effective rate of tax at least equal to that
imposed by this city; and (V) the royalty payment was paid, accrued or
incurred pursuant to a transaction that was undertaken for a valid busi-
ness purpose and using terms that reflect an arm's length relationship.
(iv) The adjustment required in this subdivision shall not apply if
the taxpayer and the commissioner of finance agree in writing to the
application or use of alternative adjustments or computations. The
commissioner of finance may, in his or her discretion, agree to the
application or use of alternative adjustments or computations when he or
she concludes that in the absence of such agreement the income of the
taxpayer would not be properly reflected.
(r) For taxable years beginning on or after January first, two thou-
sand four, in the case of a taxpayer that is not an eligible farmer as
defined in subsection (n) of section six hundred six of the tax law, a
taxpayer shall be allowed with respect to a sport utility vehicle that
is not a passenger automobile as defined in paragraph five of subsection
(d) of section two hundred eighty-F of the internal revenue code, the
deductions allowable under sections one hundred seventy-nine, one
hundred sixty-seven and one hundred sixty-eight of the internal revenue
code, determined as if such sport utility vehicle were a passenger auto-
mobile as defined in such paragraph five.
(s) Upon the disposition of property to which subdivision (r) of this
section applies, the amount of any gain or loss includible in entire net
income shall be adjusted to reflect the modification provided in such
subdivision attributable to such property.
(t) Entire net income shall not include the amount of any grant
received through either the COVID-19 pandemic small business recovery
grant program, pursuant to section sixteen-ff of the New York state
urban development corporation act, or the small business resilience
grant program administered by the department of small business services,
to the extent the amount of either such grant is included in federal
taxable income.
§ 11-641.1 Computation of alternative entire net income. (a) Alterna-
tive entire net income means entire net income as determined pursuant to
section 11-641 of this part, except that the deductions described in
paragraphs eleven and twelve of subdivision (e) of section 11-641 of
this part shall not be allowed.
(b) Any election made pursuant to paragraph two of subdivision (b) of
section 11-642 of this part with respect to the modification provided
for in subdivision (f) of section 11-641 of this part shall be deemed to
have been made for purposes of computing alternative entire net income.
§ 11-642 Allocation. (a) In general. If a taxpayer's entire net
income, alternative entire net income, or taxable assets are derived
A. 10030 561
from business carried on within and without the city, the taxpayer shall
for purposes of computing allocation percentages compute payroll,
receipts, and deposits percentages in accordance with the following
rules:
(1) The taxpayer shall ascertain the percentage which eighty percent
of the total wages, salaries and other personal service compensation
during the taxable year of employees within the city, except wages,
salaries and other personal service compensation of general executive
officers, bears to the total wages, salaries and other personal service
compensation during the taxable year of all the taxpayer's employees
within and without the city, except wages, salaries and other personal
service compensation of general executive officers.
(2) (A) The taxpayer shall ascertain the percentage which the receipts
of the taxpayer arising during the taxable year from:
(i) loans, including a taxpayer's portion of a participation in a
loan, and financing leases within the city, and all other business
receipts earned within the city, bear to
(ii) the total amount of the taxpayer's receipts from loans, including
a taxpayer's portion of a participation in a loan, and financing leases
and all other business receipts within and without the city.
(B) All interest from loans and financing leases is located where the
greater portion of income producing activity related to the loan or
financing lease occurred; provided, however:
(i) In the case of a taxpayer described in paragraph one, two, three,
four, five or seven of subdivision (a) of section 11-640 of this part, a
loan or financing lease attributed by such taxpayer to a branch without
the city shall be presumed to be properly so attributed provided that
such presumption may be rebutted if the commissioner of finance demon-
strates that the greater portion of income producing activity related to
the loan or financing lease did not occur at such branch. Where such
presumption has been rebutted, the loan or financing lease shall be
presumed to be within the city if the taxpayer had a branch within the
city at the time the loan or financing lease was made. The taxpayer may
rebut such presumption by demonstrating that the greater portion of
income producing activity related to the loan or financing lease did not
occur within the city. In the case of a loan or financing lease which is
recorded on the books of a place without the city which is not a branch,
it shall be presumed that the greater portion of income producing activ-
ity related to such loan or financing lease occurred within the city if
the taxpayer had a branch within the city at the time the loan or
financing lease was made. The taxpayer may rebut such presumption by
demonstrating that the greater portion of income producing activity
related to the loan or financing lease did not occur within the city.
(ii) In the case of a taxpayer described in paragraph six or nine of
subdivision (a) of section 11-640 of this part, a loan or financing
lease attributed by such taxpayer to a bona fide office without the city
shall be presumed to be properly so attributed provided that such
presumption may be rebutted if the commissioner of finance demonstrates
that the greater portion of income producing activity related to the
loan or financing lease did not occur without the city.
(C) Receipts from lease transactions other than financing leases
referred to in subparagraph (B) are located where the property subject
to the lease is located.
(D) (i) Interest, and fees and penalties in the nature of interest,
from bank, credit, travel and entertainment card receivables are earned
A. 10030 562
within the city if the mailing address of the card holder in the records
of the taxpayer is in the city; and
(ii) Service charges and fees from such cards are earned within the
city if the card is serviced in the city; and
(iii) Receipts from merchant discounts are earned within the city if
the merchant is located within the city.
(E) The portion of total net gains and other income from trading
activities, including but not limited to foreign exchange, options and
financial futures, and from investment activities which is attributed
within the city shall be ascertained by multiplying such total net gains
and other income by a fraction the numerator of which is the average
value of the trading assets and investment assets attributable to the
city and the denominator of which is the average value of all trading
and investment assets. A trading asset or investment asset is attribut-
able to the city if the greater portion of income producing activity
related to the trading asset or investment asset occurred within the
city.
(F) Fees or charges from the issuance of letters of credit, travelers
checks and money orders are earned within the city if such letters of
credit, travelers checks or money orders are issued within the city.
(G) Rules for receipts from certain services to investment companies.
(1) For taxable years beginning on or after January first, two thousand
one, the portion of receipts received from an investment company arising
from the sale of management, administration or distribution services to
such investment company determined in accordance with clause two of this
subparagraph shall be deemed to arise from services performed within the
city, such portion referred to herein as the Staten Island city portion.
(2) The Staten Island city portion shall be the product of (i) the
total of such receipts from the sale of such services and (ii) a frac-
tion. The numerator of that fraction is the sum of the monthly percent-
ages, as defined hereinafter, determined for each month of the invest-
ment company's taxable year for federal income tax purposes which
taxable year ends within the taxable year of the taxpayer, but excluding
any month during which the investment company had no outstanding shares.
The monthly percentage for each such month is determined by dividing (i)
the number of shares in the investment company which are owned on the
last day of the month by shareholders that are domiciled in the city by
(ii) the total number of shares in the investment company outstanding on
that date. The denominator of the fraction is the number of such monthly
percentages.
(3)(i) For purposes of this subparagraph, the term "domicile", in the
case of an individual, shall have the meaning as in chapter seventeen of
this title; an estate or trust is domiciled in the city if it is a city
resident estate or trust as defined in paragraph three of subdivision
(b) of section 11-1705 of this code; a business entity is domiciled in
the city if the location of the actual seat of management or control is
in the city. It shall be presumed that the domicile of a shareholder,
with respect to any month, is his, her or its mailing address on the
records of the investment company as of the last day of such month.
(ii) For purposes of this subparagraph, the term "investment company"
means a regulated investment company, as defined in section eight
hundred fifty-one of the internal revenue code, and a partnership to
which subdivision (a) of section seven thousand seven hundred four of
the internal revenue code applies, by virtue of paragraph three of
subdivision (c) of section seven thousand seven hundred four of such
code, and that meets the requirements of subdivision (b) of section
A. 10030 563
eight hundred fifty-one of such code. This shall be applied to the
taxable year for federal income tax purposes of the business entity that
is asserted to constitute an investment company that ends within the
taxable year of the taxpayer.
(iii) For purposes of this subparagraph, the term "receipts from an
investment company" includes amounts received directly from an invest-
ment company as well as amounts received from the shareholders in such
investment company in their capacity as such.
(iv) For purposes of this subparagraph, the term "management services"
means the rendering of investment advice to an investment company,
making determinations as to when sales and purchases of securities are
to be made on behalf of an investment company, or the selling or
purchasing of securities constituting assets of an investment company,
and related activities, but only where such activity or activities are
performed pursuant to a contract with the investment company entered
into pursuant to subdivision (a) of section fifteen of the federal
investment company act of nineteen hundred forty, as amended.
(v) For purposes of this subparagraph, the term "distribution
services" means the services of advertising, servicing investor
accounts, including redemptions, marketing shares or selling shares of
an investment company, but, in the case of advertising, servicing inves-
tor accounts, including redemptions, or marketing shares, only where
such service is performed by a person who is, or was, in the case of a
closed end company, also engaged in the service of selling such shares.
In the case of an open end company, such service of selling shares must
be performed pursuant to a contract entered into pursuant to subdivision
(b) of section fifteen of the federal investment company act of nineteen
hundred forty, as amended.
(vi) For purposes of this subparagraph, the term "administration
services" includes clerical, accounting, bookkeeping, data processing,
internal auditing, legal and tax services performed for an investment
company but only if the provider of such service or services during the
taxable year in which such service or services are sold also sells
management or distribution services, as defined in clause (v) of this
subparagraph, to such investment company.
(H) All receipts from the performance of services not described in
this paragraph are earned within the city if the services are performed
in the city. When a service is performed both within and without the
city, the receipts shall be allocated within and without the city in
accordance with rules and regulations of the commissioner of finance.
(I) All other receipts not described in subparagraphs (B) through (H)
of this paragraph shall be attributable within and without the city in
accordance with rules and regulations issued by the commissioner of
finance.
(3) The taxpayer shall ascertain the percentage which the average
value of deposits maintained at branches within the city during the
taxable year, bears to the average value of all the taxpayer's deposits
maintained at branches within and without the city during the taxable
year.
(4) Each percentage computed pursuant to this subsection shall be
computed on a cash or accrual basis according to the method of account-
ing used for the taxable year. The receipts percentage shall include
only receipts which are included in alternative entire net income for
the taxable year. The deposits and payroll percentages shall include
only deposits and payroll the expenses of which are included in the
computation of alternative entire net income for the taxable year.
A. 10030 564
(5) For purposes of this section:
(A) The term "bona fide office" means an office at which the taxpayer
carries on its business in a regular and systematic manner and which is
continuously maintained, occupied and used by employees of the taxpayer.
(B) The term "branch" means a bona fide office which is used by the
taxpayer on a regular and systematic basis to (i) approve loans, regard-
less of whether the approval of certain classes of loans requires review
or final approval by another office of the taxpayer, (ii) accept loan
repayments, (iii) disburse funds, and (iv) conduct one or more other
functions of a banking business.
(6) If it shall appear to the commissioner of finance that the allo-
cation percentage determined in subdivision (b), (c), or (d) of this
section does not properly reflect the activity, business, income or
assets of a taxpayer within the city, the commissioner of finance shall
be authorized in his discretion to adjust it by (1) excluding one or
more of the factors therein, (2) including one or more other factors, or
(3) any other similar or different method calculated to effect a fair
and proper allocation of the income or assets reasonably attributable to
the city.
(7) The commissioner of finance from time to time shall publish all
rulings of general public interest with respect to any application of
the provisions of paragraph six of this subdivision.
(b) Allocation of entire net income.
(1) If a taxpayer's entire net income is derived from business carried
on both within and without the city, the portion thereof which is
derived from business carried on within the city shall be determined by
multiplying its entire net income by the income allocation percentage
determined as follows: add the percentages ascertained under paragraphs
one, two and three of subdivision (a) of this section, plus an addi-
tional percentage equal to the receipts percentage ascertained under
paragraph two of such subdivision and an additional percentage equal to
the deposits percentage ascertained under paragraph three of such subdi-
vision, and divide the result by the number of percentages so added
together.
(1-a) Notwithstanding the provisions of paragraph one of this subdivi-
sion, each banking corporation described in paragraph nine of subdivi-
sion (a) of section 11-640 of this part subject to the tax imposed by
this part that substantially provides management, administrative or
distribution services to an investment company, as such terms are
defined in subparagraph (G) of paragraph two of subdivision (a) of this
section, shall determine the portion of its entire net income derived
from business carried on within the city by multiplying such income by
an income allocation percentage obtained as follows:
(A) For taxable years beginning in two thousand nine, the income allo-
cation percentage shall be determined by adding together the following
percentages:
(i) the product of eighteen percent and the percentage determined
under paragraph one of subdivision (a) of this section,
(ii) the product of forty-six percent and the percentage determined
under paragraph two of subdivision (a) of this section, and
(iii) the product of thirty-six percent and the percentage determined
under paragraph three of subdivision (a) of this section.
(B) For taxable years beginning in two thousand ten, the income allo-
cation percentage shall be determined by adding together the following
percentages:
A. 10030 565
(i) the product of sixteen percent and the percentage determined under
paragraph one of subdivision (a) of this section,
(ii) the product of fifty-two percent and the percentage determined
under paragraph two of subdivision (a) of this section, and
(iii) the product of thirty-two percent and the percentage determined
under paragraph three of subdivision (a) of this section.
(C) For taxable years beginning in two thousand eleven, the income
allocation percentage shall be determined by adding together the follow-
ing percentages:
(i) the product of fourteen percent and the percentage determined
under paragraph one of subdivision (a) of this section,
(ii) the product of fifty-eight percent and the percentage determined
under paragraph two of subdivision (a) of this section, and
(iii) the product of twenty-eight percent and the percentage deter-
mined under paragraph three of subdivision (a) of this section.
(D) For taxable years beginning in two thousand twelve, the income
allocation percentage shall be determined by adding together the follow-
ing percentages:
(i) the product of twelve percent and the percentage determined under
paragraph one of subdivision (a) of this section,
(ii) the product of sixty-four percent and the percentage determined
under paragraph two of subdivision (a) of this section, and
(iii) the product of twenty-four percent and the percentage determined
under paragraph three of subdivision (a) of this section.
(E) For taxable years beginning in two thousand thirteen, the income
allocation percentage shall be determined by adding together the follow-
ing percentages:
(i) the product of ten percent and the percentage determined under
paragraph one of subdivision (a) of this section,
(ii) the product of seventy percent and the percentage determined
under paragraph two of subdivision (a) of this section, and
(iii) the product of twenty percent and the percentage determined
under paragraph three of subdivision (a) of this section.
(F) For taxable years beginning in two thousand fourteen, the income
allocation percentage shall be determined by adding together the follow-
ing percentages:
(i) the product of eight percent and the percentage determined under
paragraph one of subdivision (a) of this section,
(ii) the product of seventy-six percent and the percentage determined
under paragraph two of subdivision (a) of this section, and
(iii) the product of sixteen percent and the percentage determined
under paragraph three of subdivision (a) of this section.
(G) For taxable years beginning in two thousand fifteen, the income
allocation percentage shall be determined by adding together the follow-
ing percentages:
(i) the product of six percent and the percentage determined under
paragraph one of subdivision (a) of this section,
(ii) the product of eighty-two percent and the percentage determined
under paragraph two of subdivision (a) of this section, and
(iii) the product of twelve percent and the percentage determined
under paragraph three of subdivision (a) of this section.
(H) For taxable years beginning in two thousand sixteen, the income
allocation percentage shall be determined by adding together the follow-
ing percentages:
(i) the product of four percent and the percentage determined under
paragraph one of subdivision (a) of this section,
A. 10030 566
(ii) the product of eighty-eight percent and the percentage determined
under paragraph two of subdivision (a) of this section, and
(iii) the product of eight percent and the percentage determined under
paragraph three of subdivision (a) of this section.
(I) For taxable years beginning in two thousand seventeen, the income
allocation percentage shall be determined by adding together the follow-
ing percentages:
(i) the product of two percent and the percentage determined under
paragraph one of subdivision (a) of this section,
(ii) the product of ninety-four percent and the percentage determined
under paragraph two of subdivision (a) of this section, and
(iii) the product of four percent and the percentage determined under
paragraph three of subdivision (a) of this section.
(J) For taxable years beginning after two thousand seventeen, the
income allocation percentage shall be the percentage determined under
paragraph two of subdivision (a) of this section.
(K) The commissioner shall promulgate rules necessary to implement the
provisions of this paragraph under such circumstances where any of the
percentages to be determined under paragraph one, two or three of subdi-
vision (a) of this section cannot be determined because the taxpayer has
no compensation, receipts or deposits within or without the city.
(2) (A) In lieu of the modification provided for in subdivision (f) of
section 11-641 of this part, relating to a modification for the adjusted
eligible net income of an international banking facility, a taxpayer
may, in the manner prescribed by the commissioner of finance, elect to
modify on an annual basis its income allocation percentage in the manner
described in clauses (i), (ii) and (iii) of this paragraph below:
(i) wages, salaries and other personal service compensation properly
attributable to the production of eligible gross income of the taxpay-
er's international banking facility shall not be included in the compu-
tation of wages, salaries and other personal service compensation of
employees within the city,
(ii) receipts properly attributable to the production of eligible
gross income of the taxpayer's international banking facility shall not
be included in the computation of receipts within the city, and
(iii) deposits from foreign persons which are properly attributable to
the production of eligible gross income of the taxpayer's international
banking facility shall not be included in the computation of deposits
maintained at branches within the city.
(B) For purposes of this paragraph, the term "eligible gross income"
refers to such term as set out in subdivision (f) of section 11-641 of
this part except that the term "foreign person" as defined in paragraph
eight of such subdivision (f) shall not include a foreign branch of the
taxpayer and in no event shall transactions between the taxpayer's
international banking facility and its foreign branches be considered.
(c) Allocation of alternative entire net income. If a taxpayer's
alternative entire net income is derived from business carried on both
within and without the city, the portion thereof which is derived from
business carried on within the city shall be determined by multiplying
its alternative entire net income by the alternative entire net income
allocation percentage determined as follows:
(1) Recompute the payroll percentage under paragraph one of subdivi-
sion (a) of this section without giving consideration to the phrase
"eighty percent of," add to the resulting percentage the percentages
ascertained under paragraphs two and three of such subdivision, and
divide the result by the number of percentages so added together.
A. 10030 567
(2) When an election has been made pursuant to paragraph two of subdi-
vision (b) of this section, relating to international banking facili-
ties, the taxpayer shall make the modifications described in such para-
graph for purposes of its alternative entire net income allocation
percentage.
(d) Allocation of taxable assets. If the taxpayer's taxable assets are
derived from business carried on both within and without the city, the
portion thereof which is derived from business carried on within the
city shall be determined by multiplying its taxable assets by an asset
allocation percentage determined in the same manner as the income allo-
cation percentage under subdivision (b) of this section is determined
when the election provided for in paragraph two of such subdivision has
been made, except that the modifications described in clauses (i), (ii)
and (iii) of subparagraph (A) of such paragraph shall not be made.
§ 11-643 Computation of tax for taxable years ending on or before
December thirty-first, nineteen hundred seventy-three. For taxable
years ending on or before December thirty-first, nineteen hundred seven-
ty-three, the tax imposed by section 11-639 of this part shall be the
greater of the following computations:
(a) Basic tax. Five and sixty-three one-hundredths percent of the
taxpayer's entire net income, or the portion thereof allocated to this
city, for the taxable year or part thereof.
(b) Alternative minimum tax. If the tax under subdivision (a) of this
section is less than any of the following amounts, the tax shall be the
largest of the following amounts:
(1) Except for a savings bank and savings and loan association, one
and one-quarter mills upon each dollar of such part of the taxpayer's
issued capital stock on the last day of the taxable year, at its face
value, but if such taxpayer has stock without par value, such stock
shall be taken at its actual or market value, and not less than five
dollars per share, as may be determined by the commissioner of finance,
as the gross income of such taxpayer derived from business carried on
within the city, during such taxable year, bears to its gross income
derived from all business, both within and without the city during said
year; except that if the period covered by the return is other than
twelve months, the tax shall be prorated on the basis of the number of
months or major portions thereof included in the return. For purposes of
this paragraph, the term "gross income" shall have the same meaning as
it has in the laws of the United States relating to federal income
taxes.
(2) For a savings bank and savings and loan association, one and
forty-three one-hundredths percent of the interest or dividends credited
by it to depositors or shareholders during the taxable year, provided
that, in determining such amount, each interest or dividend credit to a
depositor or shareholder shall be deemed to be the interest or dividend
actually credited or the interest or dividend which would have been
credited if it had been computed and credited at the rate of three and
one-half percent per annum, whichever is less.
(3) Twelve and one-half dollars.
§ 11-643.1 Computation of tax for taxable years beginning on or after
January first, nineteen hundred seventy-four and ending on or before
December thirty-first, nineteen hundred seventy-four. For taxable years
beginning on or after January first, nineteen hundred seventy-four and
ending on or before December thirty-first, nineteen hundred seventy-
four, the tax imposed by section 11-639 of this part shall be the great-
er of the following computations:
A. 10030 568
(a) Basic tax. Six and seven hundred fifty-six one-thousandths
percent of the taxpayer's entire net income, or the portion thereof
allocated to this city, for the taxable year, or part thereof.
(b) Alternative minimum tax. If the tax under subdivision (a) of
this section is less than any of the following amounts, the tax shall be
the largest of the following amounts:
(1) Except for a savings bank and savings and loan association, one
and one-half mills upon each dollar of such part of the taxpayer's
issued capital stock on the last day of the taxable year, at its face
value, but if such taxpayer has stock without par value, such stock
shall be taken at its actual or market value, and not less than five
dollars per share, as may be determined by the commissioner of finance,
as the gross income of such taxpayer derived from business carried on
within the city, during such taxable year bears to its gross income
derived from all business, both within and without the city during said
year; except that if the period covered by the return is other than
twelve months, the tax shall be prorated on the basis of the number of
months or major portions thereof included in the return. For purposes
of this paragraph, the term "gross income" shall have the same meaning
as it has in the laws of the United States relating to federal income
taxes.
(2) For a savings bank and savings and loan association, one and seven
hundred sixteen one-thousandths percent of the interest or dividends
credited by it to depositors or shareholders during the taxable year,
provided that, in determining such amount, each interest or dividend
credit to a depositor or shareholder shall be deemed to be the interest
or dividend actually credited or the interest or dividend which would
have been credited if it had been computed and credited at the rate of
three and one-half percent per annum, whichever is less.
(3) Fifteen dollars.
§ 11-643.2 Computation of tax for taxable years beginning in nineteen
hundred seventy-three and ending in nineteen hundred seventy-four. For
each taxable year beginning in nineteen hundred seventy-three and ending
in nineteen hundred seventy-four, two tentative taxes shall be computed,
the first as provided in section 11-643 and the second as provided in
section 11-643.1 of this part, and the tax for each such year shall be
the sum of that proportion of each tentative tax which the number of
days in nineteen hundred seventy-three and the number of days in nine-
teen hundred seventy-four, respectively, which fall within the taxable
year, bears to the number of days in the entire taxable year.
§ 11-643.3 Computation of tax for taxable years beginning on or after
January first, nineteen hundred seventy-five and before January first,
nineteen hundred eighty-five. For taxable years beginning on or after
January first, nineteen hundred seventy-five and before January first,
nineteen hundred eighty-five, the tax imposed by section 11-639 of this
part shall be the greater of the following computations:
(a) Basic tax. (1) Except for a savings bank and savings and loan
association, thirteen and eight hundred twenty-three one-thousandths
percent of the taxpayer's entire net income, or the portion thereof
allocated to this city, for the taxable year, or part thereof.
(2) For a savings bank and savings and loan association, twelve and
one hundred thirty-four thousandths percent of the taxpayer's entire net
income, or the portion thereof allocated to this city, for the taxable
year, or part thereof.
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(b) Alternative minimum tax. If the tax under subdivision (a) of
this section is less than any of the following amounts, the tax shall be
the largest of the following amounts:
(1) Except for a savings bank and savings and loan association, two
and six-tenths mills upon each dollar of such part of the taxpayer's
issued capital stock on the last day of the taxable year, at its face
value, but if such taxpayer has stock without par value, such stock
shall be taken at its actual or market value, and not less than five
dollars per share, as may be determined by the commissioner of finance,
as the gross income of such taxpayer derived from business carried on
within the city during such taxable year bears to its gross income
derived from all business, both within and without the city during said
year; except that if the period covered by the return is other than
twelve months, the tax shall be prorated on the basis of the number of
months or major portions thereof included in the return. For purposes
of this paragraph, the term "gross income" shall have the same meaning
as it has in the laws of the United States relating to federal income
taxes.
(2) Except as otherwise provided in paragraph three of this subdivi-
sion, for a savings bank and savings and loan association, two and five
hundred seventy-four one-thousandths percent of the interest or divi-
dends credited by it to depositors or shareholders during any taxable
year, provided that, in determining such amount, each interest or divi-
dend credit to a depositor or shareholder shall be deemed to be the
interest or dividend actually credited or the interest or dividend which
would have been credited if it had been computed and credited at the
rate of three and one-half percent per annum, whichever is less.
(3) (i) For a savings bank and savings and loan association, for any
quarterly accounting period in which such savings bank or savings and
loan association credits or pays dividends to its depositors or share-
holders on or after the first day of October, nineteen hundred eighty-
one but before the first day of July, nineteen hundred eighty-six, and
after such credit or payment the net worth of such savings bank or
savings and loan association is less than five percent of the amount due
depositors, one and eight hundred twenty-four one-thousandths percent of
the interest or dividends credited by it to a depositor or shareholder
during such accounting period, provided that, in determining such
amount, each interest or dividend credit to depositors or shareholders
shall be deemed to be the interest or dividend actually credited or the
interest or dividend which would have been credited if it had been
computed and credited at the rate of three and one-half percent per
annum, whichever is less. In determining the lesser of the amount of
interest or dividends actually credited to depositors or shareholders or
the amount of interest or dividends which would have been credited if
such interest or dividends had been computed and credited at the rate of
three and one-half percent per annum, the provisions of subparagraph
(ii) of this paragraph shall not be considered.
(ii) For purposes of the computation provided for in subparagraph (i)
of this paragraph, except where the tax computed under subparagraph (i)
of this paragraph is computed as if the interest or dividends were
computed and credited at the rate of three and one-half percent per
annum, that portion of the interest or dividends credited on or after
the first day of October, nineteen hundred eighty-one but before the
first day of July, nineteen hundred eighty-six by:
(A) a savings bank to a depositor or shareholder which is attributable
to an increase or a deemed increase in the gross earnings, surplus fund,
A. 10030 570
or net worth of the savings bank, which increase became available for
interest or dividends upon the prior written approval of the superinten-
dent of banks pursuant to the provisions of subdivision four of section
two hundred forty-four of the banking law; or
(B) a savings and loan association to a depositor or shareholder which
is attributable to an increase or a deemed increase in gross income,
undivided profits, surplus account or net worth of the savings and loan
association, which increase became available for interest or dividends
upon the prior written approval of the superintendent of banks pursuant
to the provisions of subdivision two of section three hundred eighty-
seven of the banking law; or
(C) a federal savings bank or a federal savings and loan association
to a depositor or shareholder, which would have required and received
prior written approval of the superintendent of banks in respect to
increases in gross income, gross earnings, undivided profits, surplus
funds, surplus accounts or net worth available for dividends pursuant to
the provisions of subdivision four of section two hundred forty-four of
the banking law and subdivision two of section three hundred eighty-sev-
en of the banking law, respectively, were the provisions of sections two
hundred forty-four and three hundred eighty-seven of the banking law
applicable to federal savings banks and federal savings and loan associ-
ations shall not be considered to have been credited to depositors or
shareholders. Where the tax computed under subparagraph (i) of this
paragraph is computed as if the interest or dividends were computed and
credited at the rate of three and one-half percent per annum, the amount
of interest or dividends which shall not be considered to have been
credited to depositors or shareholders is an amount which bears the same
ratio to the interest or dividends which would have been credited at the
rate of three and one-half percent per annum as the amount of that
portion of the interest or dividends paid or credited on or after the
first day of October, nineteen hundred eighty-one but before the first
day of July, nineteen hundred eighty-six, which is attributable to an
increase or deemed increase in gross income, gross earnings, undivided
profits, surplus funds, surplus account or net worth available for divi-
dends pursuant to the provisions of subdivision four of section two
hundred forty-four of the banking law or subdivision two of section
three hundred eighty-seven of the banking law, bears to the amount of
interest or dividends actually credited. For purposes of this clause,
the determination of whether a federal savings bank or federal savings
and loan association would have required and received prior written
approval of the superintendent of banks shall be made by the superinten-
dent of banks, upon application and upon such forms as he or she may
require, by applying the provision of subdivision four of section two
hundred forty-four of the banking law, as if such provisions were appli-
cable to federal savings banks, and subdivision two of section three
hundred eighty-seven of the banking law, as if such provisions were
applicable to federal savings and loan associations, and the superinten-
dent of banks may require and examine such information as he or she may
deem necessary to make such determinations.
(4) (i) Except for a savings bank and savings and loan association,
twenty-five dollars.
(ii) For a savings bank and savings and loan association, twenty
dollars.
§ 11-643.4 Computation of tax for taxable years beginning in nineteen
hundred seventy-four and ending in nineteen hundred seventy-five. For
each taxable year beginning in nineteen hundred seventy-four and ending
A. 10030 571
in nineteen hundred seventy-five, two tentative taxes shall be computed,
the first as provided in section 11-643.1 and the second as provided in
section 11-643.3 of this part, and the tax for each such year shall be
the sum of that proportion of each tentative tax which the number of
days in nineteen hundred seventy-four and the number of days in nineteen
hundred seventy-five, respectively, which fall within the taxable year,
bears to the number of days in the entire taxable year.
§ 11-643.5 Computation of tax for taxable years beginning on or after
January first, nineteen hundred eighty-five. For taxable years beginning
on or after January first, nineteen hundred eighty-five, the tax imposed
by section 11-639 of this part shall be the greater of the following
computations:
(a) Basic tax. Nine percent of the taxpayer's entire net income, or
the portion thereof allocated to the city, for the taxable year or part
thereof.
(b) Alternative minimum tax. If the tax under subdivision (a) of this
section is less than any of the following amounts, the tax shall be the
larger of the following amounts:
(1) For taxable years beginning before two thousand eleven, except in
the case of a corporation organized under the laws of a country other
than the United States, one-tenth of a mill upon each dollar of taxable
assets, or the portion thereof allocated to the city. For taxable years
beginning after two thousand ten, except in the case of a taxpayer
described in clause (i), (ii), or (iii) of this subparagraph, one-tenth
of a mill upon each dollar of taxable assets, or the portion thereof
allocated to the city.
(i) In the case of a taxpayer whose net worth ratio is less than five
percent but greater than or equal to four percent and whose total assets
are comprised of thirty-three percent or more of mortgages, one-twenty-
fifth of a mill upon each dollar of taxable assets, or the portion ther-
eof allocated to the city.
(ii) In the case of a taxpayer whose net worth ratio is less than four
percent and whose total assets are comprised of thirty-three percent or
more of mortgages, one-fiftieth of a mill upon each dollar of taxable
assets, or the portion thereof allocated to the city.
(iii) A taxpayer, whether or not a qualified institution as defined in
subparagraph (B) of paragraph five of subsection (f) of section four
hundred six of the federal national housing act, as amended, or as
defined in paragraph two of subsection (i) of section thirteen of the
federal deposit insurance act, as amended, shall not be subject to the
provisions of this paragraph for that portion of the taxable year in
which it had outstanding net worth certificates issued in accordance
with paragraph five of subsection (f) of section four hundred six of the
federal national housing act, as amended, or issued in accordance with
subsection (i) of section thirteen of the federal deposit insurance act,
as amended.
(iv) For the purposes of this part: (A) the term "taxable assets"
shall mean the average value of total assets reduced by any amount of
money or other property received from or attributable to amounts
received from the federal deposit insurance corporation pursuant to
subsection (c) of section thirteen of the federal deposit insurance act,
as amended, or the federal savings and loan insurance corporation pursu-
ant to paragraph one, two, three or four of subsection (f) of section
four hundred six of the federal national housing act, as amended. Total
assets are those assets which are properly reflected on a balance sheet
the income or expenses of which are properly reflected, or would have
A. 10030 572
been properly reflected if not fully depreciated or expensed or depreci-
ated or expensed to a nominal amount, in the computation of alternative
entire net income for the taxable year or in the computation of the
eligible net income of the taxpayer's international banking facility for
the taxable year.
(B) The term "net worth ratio" shall mean the percentage of net worth
to assets on the last day of the taxable year. The term "net worth"
means the sum of preferred stock, common stock, surplus, capital
reserves, undivided profits, mutual capital certificates, reserve for
contingencies, reserve for loan losses and reserve for security losses
minus assets classified loss. The term "assets" means the sum of mort-
gage loans, nonmortgage loans, repossessed assets, real estate held for
development or investment or resale, cash, deposits, investment securi-
ties, fixed assets and other assets, such as financial futures, goodwill
and other intangible assets, minus assets classified loss. In no event
shall assets be reduced by reserves for losses.
(C) The term "mortgages" shall mean loans secured by real property
within or without the state, participations in and securities collater-
alized by pools of residential mortgages, whether or not issued or guar-
anteed by a United States government agency, and loans secured by stock
in a cooperative housing corporation. The percentage of total assets
comprised of mortgages shall be an amount equal to the ratio of the
average of the four quarterly balances of such mortgages ending within
the taxable year, to the average of the four quarterly balances of all
assets ending within the taxable year. Such quarterly balances shall be
computed in the same manner as the report of condition required for
federal deposit insurance corporation or federal savings and loan insur-
ance corporation purposes, whether or not such report is required. For
taxable periods of less than one year, the taxpayer shall compute such
ratio using the number of such quarterly balances ending within such
taxable period.
(2) For taxable years beginning before two thousand eleven, in the
case of a corporation organized under the laws of a country other than
the United States, (i) two and six-tenths mills upon each dollar of such
part of the taxpayer's issued capital stock on the last day of the taxa-
ble year, at its face value, but if such taxpayer has stock without par
value, such stock shall be taken at its actual or market value, and not
less than five dollars per share, as may be determined by the commis-
sioner of finance, or (ii) if the taxpayer does not have issued capital
stock, two and six-tenths mills upon each dollar of such part of the
amount by which its average total assets exceeds its average total
liabilities, as the gross income of such taxpayer derived from business
carried on within the city during such taxable year bears to its gross
income derived from all business, both within and without the city
during said year; except that if the period covered by the return is
other than twelve months, the tax shall be prorated on the basis of the
number of months or major portions thereof included in the return. For
purposes of this paragraph, the term "gross income" shall have the same
meaning as it has in the laws of the United States relating to federal
income taxes.
(3) Three percent of the taxpayer's alternative entire net income, or
portion thereof allocated to the city, for the taxable year, or part
thereof.
(4) One hundred twenty-five dollars.
§ 11-643.7. Relocation and employment assistance credit. (a) In addi-
tion to any other credit allowed by this part, a taxpayer that has
A. 10030 573
obtained the certifications required by chapter six-B of title twenty-
two of the code of the preceding municipality shall be allowed a credit
against the tax imposed by this part. The amount of the credit shall be
the amount determined by multiplying five hundred dollars or, in the
case of a taxpayer that has obtained pursuant to chapter six-B of such
title twenty-two a certification of eligibility dated on or after July
first, nineteen hundred ninety-five, one thousand dollars or, in the
case of an eligible business that has obtained pursuant to chapter six-B
of such title twenty-two a certification of eligibility dated on or
after July first, two thousand, for a relocation to eligible premises
located within a revitalization area defined in subdivision (n) of
section 22-621 of the code of the preceding municipality, three thousand
dollars, by the number of eligible aggregate employment shares main-
tained by the taxpayer during the taxable year with respect to partic-
ular premises to which the taxpayer has relocated; provided, however,
with respect to a relocation for which no application for a certificate
of eligibility is submitted prior to July first, two thousand three to
eligible premises that are not within a revitalization area, if the date
of such relocation as determined pursuant to subdivision (j) of section
22-621 of the code of the preceding municipality is before July first,
nineteen hundred ninety-five, the amount to be multiplied by the number
of eligible aggregate employment shares shall be five hundred dollars,
and with respect to a relocation for which no application for a certif-
icate of eligibility is submitted prior to July first, two thousand
three, to eligible premises that are within a revitalization area, if
the date of such relocation as determined pursuant to subdivision (j) of
such section is before July first, nineteen hundred ninety-five, the
amount to be multiplied by the number of eligible aggregate employment
shares shall be five hundred dollars, and if the date of such relocation
as determined pursuant to subdivision (j) of such section is on or after
July first, nineteen hundred ninety-five, and before July first, two
thousand, one thousand dollars; provided, however, that no credit shall
be allowed for the relocation of any retail activity or hotel services;
and provided that in the case of an eligible business that has obtained
pursuant to chapter six-B of such title twenty-two certifications of
eligibility for more than one relocation, the portion of the total
amount of eligible aggregate employment shares to be multiplied by the
dollar amount specified in this subdivision for each such certification
of a relocation shall be the number of total attributed eligible aggre-
gate employment shares determined with respect to such relocation pursu-
ant to subdivision (o) of section 22-621 of the code of the preceding
municipality. For purposes of this section, the terms "eligible aggre-
gate employment shares," "relocate," "retail activity" and "hotel
services" shall have the meanings ascribed by section 22-621 of the code
of the preceding municipality.
(b) The credit allowed under this section with respect to eligible
aggregate employment shares maintained with respect to particular prem-
ises to which the taxpayer has relocated shall be allowed for the first
taxable year during which such eligible aggregate employment shares are
maintained with respect to such premises and for any of the twelve
succeeding taxable years during which eligible aggregate employment
shares are maintained with respect to such premises; provided that the
credit allowed for the twelfth succeeding taxable year shall be calcu-
lated by multiplying the number of eligible aggregate employment shares
maintained with respect to such premises in the twelfth succeeding taxa-
ble year by the lesser of one and a fraction the numerator of which is
A. 10030 574
such number of days in the taxable year of relocation less the number of
days the eligible business maintained employment shares in the eligible
premises in the taxable year of relocation and the denominator of which
is the number of days in such twelfth succeeding taxable year during
which such eligible aggregate employment shares are maintained with
respect to such premises. Except as provided in subdivision (d) of this
section, if the amount of the credit allowable under this section for
any taxable year exceeds the tax imposed for such year, the excess may
be carried over, in order, to the five immediately succeeding taxable
years and, to the extent not previously deductible, may be deducted from
the taxpayer's tax for such years.
(c) The credit allowable under this section shall be deducted after
the credit allowed by section 11-643.8, but prior to the deduction of
any other credit allowed by this part.
(d) In the case of a taxpayer that has obtained a certification of
eligibility pursuant to chapter six-B of title twenty-two of the code of
the preceding municipality dated on or after July first, two thousand
for a relocation to eligible premises located within the revitalization
area defined in subdivision (n) of section 22-621 of the code of the
preceding municipality, the credits allowed under this section, or in
the case of a taxpayer that has relocated more than once, the portion of
such credits attributed to such certification of eligibility pursuant to
subdivision (a) of this section, against the tax imposed by this chapter
for the taxable year of such relocation and for the four taxable years
immediately succeeding the taxable year of such relocation, shall be
deemed to be overpayments of tax by the taxpayer to be credited or
refunded, without interest, in accordance with the provisions of section
11-677 of this chapter. For such taxable years, such credits or portions
thereof may not be carried over to any succeeding taxable year;
provided, however, that this subdivision shall not apply to any relo-
cation for which an application for a certification of eligibility was
not submitted prior to July first, two thousand three, unless the date
of such relocation is on or after July first, two thousand.
§ 11-643.8 Credit relating to certain distributions from partnerships.
(a) If a banking corporation is a partner in an unincorporated business
taxable under chapter five of this title, and is required to include in
entire net income its distributive share of income, gain, loss and
deductions of, or guaranteed payments from, such unincorporated busi-
ness, such banking corporation shall be allowed a credit against the tax
imposed by this part equal to the lesser of the amounts determined in
paragraphs one and two of this subdivision:
(1) The amount determined in this paragraph is the product of (A) the
sum of (i) the tax imposed by chapter five of this title on the unincor-
porated business for its taxable year ending within or with the taxable
year of the banking corporation and paid by the unincorporated business
and (ii) the amount of any credit or credits taken by the unincorporated
business under section 11-503 of this title, except the credit allowed
by subdivision (b) of such section, for its taxable year ending within
or with the taxable year of the banking corporation, to the extent that
such credits do not reduce such unincorporated business's tax below
zero, and (B) a fraction, the numerator of which is the net total of the
banking corporation's distributive share of income, gain, loss and
deductions of, and guaranteed payments from, the unincorporated business
for such taxable year and the denominator of which is the sum, for such
taxable year, of the net total distributive shares of income, gain, loss
and deductions of, and guaranteed payments to, all partners of the unin-
A. 10030 575
corporated business for whom or which such net total, as separately
determined for each partner, is greater than zero.
(2) The amount determined in this paragraph is the product of (A) the
excess of (i) the basic tax computed pursuant to subdivision (a) of
section 11-643.5 of this part, without allowance of any credits allowed
by this part, over (ii) the basic tax so computed, determined as if the
banking corporation had no such distributive share or guaranteed
payments with respect to the unincorporated business, and (B) a frac-
tion, the numerator of which is four and the denominator of which is
nine, provided, however, that the amounts computed in clauses (i) and
(ii) of this paragraph shall be computed with the following modifica-
tions:
(I) if, prior to taking into account any distributive share or guaran-
teed payments from any unincorporated business, the entire net income of
the partner is less than zero, such entire net income shall be treated
as zero; and
(II) if such partner's net total distributive share of income, gain,
loss and deductions of, and guaranteed payments from any unincorporated
business is less than zero, such net total shall be treated as zero.
The amount determined in this paragraph shall not be less than zero.
(b) (1) Notwithstanding anything to the contrary in subdivision (a) of
this section, in the case of a banking corporation that, before the
application of this section or any other credit allowed by this part, is
liable for the basic tax computed under subdivision (a) of section
11-643.5 of this part, the credit or the sum of the credits that may be
taken by such banking corporation for a taxable year under this section
with respect to an unincorporated business or unincorporated businesses
in which it is a partner shall not exceed the tax so computed, without
allowance of any credits allowed by this part, multiplied by a fraction
the numerator of which is four and the denominator of which is nine. If
the credit allowed under this subdivision or the sum of such credits
exceeds the product of such tax and such fraction, the amount of the
excess may be carried forward, in order, to each of the seven immediate-
ly succeeding taxable years and, to the extent not previously taken,
shall be allowed as a credit in each of such years. In applying such
provisions, the credit determined for the taxable year under subdivision
(a) of this section shall be taken before taking any credit carryforward
pursuant to this paragraph and the credit carryforward attributable to
the earliest taxable year shall be taken before taking a credit carry-
forward attributable to a subsequent taxable year.
(2) Notwithstanding anything to the contrary in subdivision (a) of
this section, in the case of a banking corporation that, before the
application of this section or any other credit allowed by this part, is
liable for the alternative minimum tax on alternative entire net income
under paragraph three of subdivision (b) of section 11-643.5 of this
part, the maximum credit that may be taken in any taxable year is the
amount that will reduce the tax so computed, without allowance of any
credits allowed by this part, to zero. For purposes of this paragraph
each dollar of credit shall be applied so as to reduce such tax by
seventy-five cents. If the amount of credit allowed under this section
or the sum of such credits exceeds the amount that may be taken against
such tax, the amount of the excess may be carried forward, in order, to
each of the seven immediately succeeding taxable years and, to the
extent not previously taken, shall be allowed as a credit in each of
such years. In applying such provisions, the credit determined for the
taxable year under subdivision (a) of this section shall be taken before
A. 10030 576
taking any credit carryforward pursuant to this subdivision and the
credit carryforward attributable to the earliest taxable year shall be
taken before taking a credit carryforward attributable to a subsequent
taxable year.
(3) No credit under this section may be taken in a taxable year by a
taxpayer that, in the absence of such credit, would be liable for the
tax computed on the basis of taxable assets under paragraph one of this
subdivision, the tax computed on the basis of issued capital stock under
paragraph two of this subdivision or the fixed-dollar minimum tax under
paragraph four of subdivision (b) of section 11-643.5 of this part.
(c) For banking corporations that file a report on a combined basis
pursuant to subdivision (f) of section 11-646 of this part, the credit
allowed by this section shall be computed as if the combined group were
the partner in each unincorporated business from which any of the
members of such group had a distributive share or guaranteed payments,
provided, however, if more than one member of the combined group is a
partner in the same unincorporated business, for purposes of the calcu-
lation required in paragraph one of subdivision (a) of this section, the
numerator of the fraction described in subparagraph (B) of such para-
graph one shall be the sum of the net total distributive shares of
income, gain, loss and deductions of, and guaranteed payments from, the
unincorporated business of all of the partners of the unincorporated
business within the combined group for which such net total, as sepa-
rately determined for each partner, is greater than zero, and the denom-
inator of such fraction shall be the sum of the net total distributive
shares of income, gain, loss and deductions of, and guaranteed payments
from, the unincorporated business of all partners in the unincorporated
business for whom or which such net total, as separately determined for
each partner, is greater than zero.
(d) The credit allowed by this section shall not be allowed to a part-
ner in an unincorporated business with respect to any tax paid by the
unincorporated business under chapter five of this title for any taxable
year beginning before July first, nineteen hundred ninety-four.
(e) Notwithstanding any other provisions of this part, the credit
allowable under this section shall be taken prior to the taking of any
other credit allowed by this part. Notwithstanding any other provisions
of this part, the application of this section shall not change the basis
on which the taxpayer's tax is computed under subdivision (a) or (b) of
section 11-643.5 of this part.
§ 11-644 Declarations of estimated tax. (a) Requirements of declara-
tion. Every taxpayer subject to the tax imposed by subdivision (a) of
section 11-639 of this part shall make a declaration of its estimated
tax for the current taxable year, containing such information as the
commissioner of finance may prescribe by regulations or instructions, if
such estimated tax can reasonably be expected to exceed one thousand
dollars.
(b) Definition of estimated tax. The term "estimated tax" means the
amount which a taxpayer estimates to be the tax imposed by subdivision
(a) of section 11-639 of this part for the current taxable year, less
the amount which it estimates to be the sum of any credits allowable
against the tax.
(c) Time for filing declaration. A declaration of estimated tax shall
be filed on or before June fifteenth of the current taxable year in the
case of a taxpayer which reports on the basis of a calendar year, except
that if the requirements of subdivision (a) of this section are first
met:
A. 10030 577
(1) after May thirty-first and before September first of such current
taxable year, the declaration shall be filed on or before September
fifteenth, or
(2) after August thirty-first and before December first of such
current taxable year, the declaration shall be filed on or before Decem-
ber fifteenth.
(d) Amendments of declaration. A taxpayer may amend a declaration
under regulations of the commissioner of finance.
(e) Return as declaration. If, on or before February fifteenth of the
succeeding year in the case of a taxpayer whose taxable year is a calen-
dar year, a taxpayer files its return for the year for which the decla-
ration is required, and pays therewith the balance, if any, of the full
amount of the tax shown to be due on the return:
(1) such return shall be considered as its declaration if no declara-
tion was required to be filed during the taxable year for which the tax
was imposed, but is otherwise required to be filed on or before December
fifteenth pursuant to paragraph two of subdivision (c) of this section,
and
(2) such return shall be considered as the amendment permitted by
subdivision (d) of this section to be filed on or before December
fifteenth if the tax shown on the return is greater than the estimated
tax shown on a declaration previously made.
(f) Fiscal year. This section shall apply to taxable years of twelve
months other than a calendar year by the substitutions of the months of
such fiscal year for the corresponding months specified in this section.
(g) Short taxable period. If the taxable period for which a tax is
imposed by subdivision (a) of section 11-639 of this part is less than
twelve months, every taxpayer required to make a declaration of esti-
mated tax for such taxable period shall make such a declaration in
accordance with regulations of the commissioner of finance.
(h) Extension of time. The commissioner of finance may grant a
reasonable extension of time, not to exceed three months, for the filing
of any declaration required pursuant to this section, on such terms and
conditions as the commissioner may require.
§ 11-645 Payments of estimated tax. (a) Every taxpayer subject to
the tax imposed by section 11-639 of this part shall pay an amount equal
to twenty-five percent of the preceding year's tax, if such preceding
year's tax exceeded one thousand dollars. Such amount shall be paid
with the return required to be filed for the preceding taxable year or
with an application for the extension of the time for filing such
return. Provided, however, that for the first taxable year or period
commencing on or after January first, nineteen hundred seventy-three,
the installment required by this subdivision shall be paid with the
return required to be filed for the tax imposed pursuant to part one or
two of this subchapter three computed on the basis of net income for the
calendar year nineteen hundred seventy-two, or under the minimum tax
provisions of section 11-612 of this subchapter.
(b) Other installments. The estimated tax for each taxable year with
respect to which a declaration of estimated tax is required to be filed
under this part shall be paid, in the case of a taxpayer which reports
on the basis of a calendar year, as follows:
(1) If the declaration is filed on or before June fifteenth, the esti-
mated tax shown thereon, after applying thereto the amount, if any, paid
during the same taxable year pursuant to subdivision (a) of this
section, shall be paid in three equal installments. One of such
installments shall be paid at the time of the filing of the declaration,
A. 10030 578
one shall be paid on the following September fifteenth, and one on the
following December fifteenth.
(2) If the declaration is filed after June fifteenth and not after
September fifteenth of such taxable year, and is not required to be
filed on or before June fifteenth of such year, the estimated tax shown
on such declaration, after applying thereto the amount, if any, paid
during the same taxable year pursuant to subdivision (a) of this
section, shall be paid in two equal installments. One of such install-
ments shall be paid at the time of the filing of the declaration and one
shall be paid on the following December fifteenth.
(3) If the declaration is filed after September fifteenth of such
taxable year, and is not required to be filed on or before September
fifteenth of such year, the estimated tax shown on such declaration,
after applying thereto the amount, if any, paid in respect of such year
pursuant to subdivision (a) of this section, shall be paid in full at
the time of the filing of the declaration.
(4) If the declaration is filed after the time prescribed therefor,
or after the expiration of any extension of time therefor, paragraphs
two and three of this subdivision shall not apply and there shall be
paid at the time of such filing all installments of estimated tax paya-
ble at or before such time, and the remaining installments shall be paid
at the times at which, and in the amounts in which, they would have been
payable if the declaration had been filed when due.
(c) Amendments of declarations. If any amendment of a declaration is
filed, the remaining installments, if any, shall be ratably increased or
decreased, as the case may be, to reflect any increase or decrease in
the estimated tax by reason of such amendment, and if any amendment is
made after September fifteenth of the taxable year, any increase in the
estimated tax by reason thereof shall be paid at the time of making such
amendment.
(d) Application of installments based on the preceding year's tax.
Any amount paid pursuant to subdivision (a) of this section shall be
applied as a first installment against the estimated tax of the taxpayer
for the taxable year shown on the declaration required to be filed
pursuant to section 11-644 of this part, or if no declaration of esti-
mated tax is required to be filed by the taxpayer pursuant to such
section, any such amount shall be considered a payment on account of the
tax shown on the return required to be filed by the taxpayer for such
taxable year.
(e) Interest on certain installments based on the preceding year's
tax. Notwithstanding the provisions of section 11-679 of this chapter or
of section three-a of the general municipal law, if an amount paid
pursuant to subdivision (a) of this section exceeds the tax shown on the
return required to be filed by the taxpayer for the taxable year during
which the amount was paid, interest shall be allowed and paid on the
amount by which the amount so paid pursuant to such subdivision exceeds
such tax, at the overpayment rate set by the commissioner of finance
pursuant to section 11-687 of this chapter, or, if no rate is set, at
the rate of six percent per annum from the date of payment of the amount
so paid pursuant to such subdivision to the fifteenth day of the third
month following the close of the taxable year, provided, however, that
no interest shall be allowed or paid under this subdivision if the
amount thereof is less than one dollar.
(f) The preceding year's tax defined. As used in this section, "the
preceding year's tax" means the tax imposed upon the taxpayer by subdi-
vision (a) of section 11-639 of this part for the preceding taxable
A. 10030 579
year, or, for purposes of computing the first installment of estimated
tax when an application has been filed for extension of the time for
filing the return required to be filed for such preceding taxable year,
the amount properly estimated pursuant to paragraph one of subdivision b
of section 11-647 of this part as the tax imposed upon the taxpayer for
such taxable year. Provided, however, that for the first taxable year
or period commencing on or after January first, nineteen hundred seven-
ty-three, the term "preceding year's tax" as used in this section shall
mean the tax imposed upon the taxpayer pursuant to part one or two of
this subchapter three which was computed on the basis of net income for
the calendar year nineteen hundred seventy-two, or under the minimum tax
provisions of subdivision two of section 11-612 of this subchapter, or
for purposes of computing the first installment of estimated tax for
such first taxable year or period when an application has been filed for
an extension of the time for filing the return required to be filed for
the tax imposed pursuant to part one or two of this subchapter three
which was computed on the basis of net income for the calendar year
nineteen hundred seventy-two, or under the minimum tax provisions of
section 11-612 of this subchapter, the amount of tax properly estimated
for purposes of such part one or two pursuant to section 11-635 of this
subchapter.
(g) Application to short taxable period. This section shall apply to
a taxable period of less than twelve months in accordance with regu-
lations of the commissioner of finance.
(h) Fiscal year. The provisions of this section shall apply to taxa-
ble years of twelve months other than a calendar year by the substi-
tution of the months of such fiscal year for the corresponding months
specified in such provisions.
(i) Extension of time. The commissioner of finance may grant a
reasonable extension of time, not to exceed six months, for payment of
any installment of estimated tax required pursuant to this section, on
such terms and conditions as the commissioner may require, including the
furnishing of a bond or other security by the taxpayer in an amount not
exceeding twice the amount for which any extension of time for payment
is granted, provided, however that interest at the underpayment rate set
by the commissioner of finance pursuant to section 11-687 of this chap-
ter, or, if no rate is set, at the rate of seven and one-half percent
per annum for the period of the extension shall be charged and collected
on the amount for which any extension of time for payment is granted
under this subdivision.
(j) Payment of installments in advance. A taxpayer may elect to pay
any installment of estimated tax prior to the date prescribed in this
section for payment thereof.
§ 11-646 Returns. (a) Every taxpayer shall annually on or before
the fifteenth day of the third month following the close of each of its
taxable years transmit to the commissioner of finance a return in a form
prescribed by the commissioner setting forth such information as the
commissioner of finance may prescribe and every taxpayer which ceases to
exercise its franchise in the city or to be subject to the tax imposed
by this part shall transmit to the commissioner of finance a return on
the date of such cessation or at such other time as the commissioner of
finance may require covering each year or period for which no return was
therefore filed.
(b) Every taxpayer shall also transmit such other returns and such
facts and information as the commissioner of finance may require in the
administration of this part.
A. 10030 580
(c) The commissioner of finance may grant a reasonable extension of
time for filing returns whenever good cause exists. An automatic exten-
sion of six months for the filing of its annual return shall be allowed
any taxpayer, if within the time prescribed by subdivision (a) of this
section, such taxpayer files with the commissioner of finance an appli-
cation for extension in such form as said commissioner of finance may
prescribe by regulation and pays on or before the date of such filing
the amount properly estimated as its tax.
(d) Every return shall have annexed thereto a certification by the
president, vice president, treasurer, assistant treasurer, chief
accounting officer or any other officer of the taxpayer duly authorized
so to act to the effect that the statements contained therein are true.
The fact that an individual's name is signed on a certification of the
return shall be prima facie evidence that such individual is authorized
to sign and certify the return on behalf of the corporation.
(e) If the amount of taxable income, alternative minimum taxable
income or other basis of tax for any year of any taxpayer, or of any
shareholder of any taxpayer that has elected to be taxed under subchap-
ter s of chapter one of the internal revenue code or of any shareholder
of any taxpayer with respect to which an election has been made to be
treated as a qualified subchapter s subsidiary under paragraph three of
subsection (b) of section thirteen hundred sixty-one of the internal
revenue code as returned to the United States treasury department or the
New York state commissioner of taxation and finance is changed or
corrected by the commissioner of internal revenue or other officer of
the United States or the New York state commissioner of taxation and
finance or other competent authority, or if a taxpayer or such share-
holder of a taxpayer, pursuant to subsection (d) of section sixty-two
hundred thirteen of the internal revenue code, executes a notice of
waiver of the restrictions provided in subsection (a) of said section,
or if a taxpayer or such shareholder of a taxpayer, pursuant to
subsection (f) of section one thousand eighty-one of the tax law,
executes a notice of waiver of the restrictions provided in subsection
(c) of such section, such taxpayer shall report such changed or
corrected taxable income, alternative minimum taxable income or other
basis of tax or such execution of such notice of waiver and the changes
or corrections of the taxpayer's federal or New York state taxable
income, alternative minimum taxable income or other basis of tax on
which it is based, within ninety days, or one hundred twenty days, in
the case of a taxpayer making a combined return under this subchapter
for such year, after such execution or the final determination of such
change or correction, or as required by the commissioner of finance, and
shall concede the accuracy of such determination or state wherein it is
erroneous. The allowance of a tentative carryback adjustment based upon
a net capital loss carryback pursuant to section sixty-four hundred
eleven of the internal revenue code, shall be treated as a final deter-
mination for purposes of this subdivision. Any taxpayer filing an
amended return with such department shall also file within ninety days,
or one hundred twenty days, in the case of a taxpayer making a combined
return under this subchapter for such year, thereafter an amended return
with the commissioner of finance which shall contain such information as
the commissioner shall require.
(f) (1) For purposes of this subdivision, the term "bank holding
company" means any corporation subject to article three-A of the banking
law, or registered under the federal bank holding company act of nine-
teen hundred fifty-six, as amended, or registered as a savings and loan
A. 10030 581
holding company, but excluding a diversified savings and loan holding
company, under the federal national housing act, as amended.
(2) (i) Any banking corporation or bank holding company which is doing
business in the city in a corporate or organized capacity, and
(A) which owns or controls, directly or indirectly, eighty percent or
more of the voting stock of one or more banking corporations or bank
holding companies, or
(B) whose voting stock is eighty percent or more owned or controlled,
directly or indirectly, by a banking corporation or a bank holding
company,
shall make a return on a combined basis under this part covering
itself and such corporations described in clause (A) or (B) of this
subparagraph and shall set forth such information as the commissioner of
finance may require unless the taxpayer or the commissioner of finance
shows that the inclusion of such a corporation in the combined return
fails to properly reflect the tax liability of such corporation under
this part. Provided, however, that no banking corporation or bank hold-
ing company not a taxpayer shall be subject to the requirements of this
subparagraph unless the commissioner of finance deems that the applica-
tion of such requirements is necessary in order to properly reflect the
tax liability under this part, because of intercompany transactions or
some agreement, understanding, arrangement or transaction of the type
referred to in subdivision (g) of this section.
(ii) In the discretion of the commissioner of finance, any banking
corporation or bank holding company which is doing business in the city
in a corporate or organized capacity, and
(A) which owns or controls, directly or indirectly, sixty-five percent
or more of the voting stock of one or more banking corporations or bank
holding companies, or
(B) whose voting stock is sixty-five percent or more owned or
controlled, directly or indirectly, by a banking corporation or a bank
holding company, may be required or permitted to make a return on a
combined basis under this part covering itself and such corporations
described in clause (A) or (B) of this subparagraph and shall set forth
such information as the commissioner of finance may require; provided,
however, that no combined return shall be required or permitted unless
the commissioner of finance deems such report necessary in order to
properly reflect the tax liability under this part of any one or more of
such banking corporations or bank holding companies.
(iii) In the discretion of the commissioner of finance, banking corpo-
rations or bank holding companies which are each sixty-five percent or
more owned or controlled, directly or indirectly, by the same interest
may be permitted or required to make a return on a combined basis under
this part and shall set forth such information as the commissioner of
finance may require, if at least one such banking corporation or bank
holding company is doing business in the city in a corporate or organ-
ized capacity. No combined return shall be required or permitted unless
the commissioner of finance deems such report necessary in order to
properly reflect the tax liability under this part of any one or more of
such banking corporations or bank holding companies.
(iv) (A) Notwithstanding any provision of this paragraph, any bank
holding company exercising its corporate franchise or doing business in
the city may make a return on a combined basis without seeking the
permission of the commissioner with any banking corporation exercising
its corporate franchise or doing business in the city in a corporate or
organized capacity sixty-five percent or more of whose voting stock is
A. 10030 582
owned or controlled, directly or indirectly, by such bank holding compa-
ny, for the first taxable year beginning on or after January first, two
thousand and before January first, two thousand twenty during which such
bank holding company registers for the first time under the federal bank
holding company act, as amended, and also elects to be a financial hold-
ing company. In addition, for each subsequent taxable year beginning
after January first, two thousand and before January first, two thousand
twenty, any such bank holding company may file on a combined basis with-
out seeking the permission of the commissioner with any banking corpo-
ration that is exercising its corporate franchise or doing business in
the city and sixty-five percent or more of whose voting stock is owned
or controlled, directly or indirectly, by such bank holding company if
either such banking corporation is exercising its corporate franchise or
doing business in the city in a corporate or organized capacity for the
first time during such subsequent taxable year, or sixty-five percent or
more of the voting stock of such banking corporation is owned or
controlled, directly or indirectly, by such bank holding company for the
first time during such subsequent taxable year. Provided however, for
each subsequent taxable year beginning after January first, two thousand
and before January first, two thousand twenty, a banking corporation
described in this clause which filed on a combined basis with any such
bank holding company in a previous taxable year, must continue to file
on a combined basis with such bank holding company if such banking
corporation, during such subsequent taxable year, continues to exercise
its corporate franchise or do business in the city in a corporate or
organized capacity and sixty-five percent or more of such banking corpo-
ration's voting stock continues to be owned or controlled, directly or
indirectly, by such bank holding company, unless the permission of the
commissioner has been obtained to file on a separate basis for such
subsequent taxable year. Provided further, however, for each subsequent
taxable year beginning after January first, two thousand and before
January first, two thousand twenty, a banking corporation described in
this clause which did not file on a combined basis with any such bank
holding company in a previous taxable year, may not file on a combined
basis with such bank holding company during any such subsequent taxable
year unless the permission of the commissioner has been obtained to file
on a combined basis for such subsequent taxable year.
(B) Notwithstanding any provision of this paragraph other than clause
(A) of this subparagraph, the commissioner may not require a bank hold-
ing company which, during a taxable year beginning on or after January
first, two thousand and before January first, two thousand twenty,
registers for the first time during such taxable year under the federal
bank holding company act, as amended, and also elects to be a financial
holding company, to make a return on a combined basis for any taxable
year beginning on or after January first, two thousand and before Janu-
ary first, two thousand twenty with a banking corporation sixty-five
percent or more of whose voting stock is owned or controlled, directly
or indirectly, by such bank holding company.
(v)(A) For purposes of this subparagraph, the term "closest control-
ling stockholder" means the corporation that indirectly owns or controls
over fifty percent of the voting stock of a captive REIT or captive RIC,
is subject to tax under this subchapter or otherwise required to be
included in a combined return under this chapter and is the fewest tiers
of corporations away in the ownership structure from the captive REIT or
captive RIC. The commissioner is authorized to prescribe by regulation
A. 10030 583
or published guidance the criteria for determining the closest control-
ling stockholder.
(B) A captive REIT or a captive RIC must be included in a combined
return with the banking corporation or bank holding company that direct-
ly owns or controls over fifty percent of the voting stock of the
captive REIT or captive RIC if that banking corporation or bank holding
company is subject to tax or required to be included in a combined
return under this subchapter.
(C) If over fifty percent of the voting stock of a captive REIT or
captive RIC is not directly owned or controlled by a banking corporation
or bank holding company that is subject to tax or required to be
included in a combined return under this subchapter, then the captive
REIT or captive RIC must be included in a combined return with the
corporation that is the closest controlling stockholder of the captive
REIT or captive RIC. If the closest controlling stockholder of the
captive REIT or captive RIC is a banking corporation or bank holding
company that is subject to tax or otherwise required to be included in a
combined return under this subchapter, then the captive REIT or captive
RIC must be included in a combined return under this subchapter.
(D) If the corporation which directly owns or controls the voting
stock of the captive REIT or captive RIC is described in subparagraph
(ii) of paragraph four of this subdivision as a corporation not permit-
ted to make a combined return, then the provisions in clause (C) of this
subparagraph must be applied to determine the corporation in whose
combined return the captive REIT or captive RIC should be included. If,
under clause (C) of this subparagraph, the corporation that is the clos-
est controlling stockholder of the captive REIT or captive RIC is
described in subparagraph (ii) or (iv) of paragraph four of this subdi-
vision as a corporation not permitted to make a combined return, then
that corporation is deemed to not be in the ownership structure of the
captive REIT or captive RIC, and the closest controlling stockholder
will be determined without regard to that corporation.
(E) If a captive REIT owns the stock of a qualified REIT subsidiary,
as defined in paragraph two of subsection (i) of section eight hundred
fifty-six of the internal revenue code, then the qualified REIT subsid-
iary must be included in any combined return required to be made by the
captive REIT that owns its stock.
(F) If a captive REIT or a captive RIC is required under this subpara-
graph to be included in a combined return with another corporation, and
that other corporation is required to be included in a combined return
with another corporation under other provisions of this subdivision, the
captive REIT or captive RIC must be included in that combined return
with those corporations.
(G) If the banking corporation or bank holding company that directly
or indirectly owns or controls over fifty percent of the voting stock of
the captive REIT or captive RIC and is the closest controlling stock-
holder of the captive REIT or captive RIC is a member of an affiliated
group (1) that does not include any corporation that is engaged in a
business that a subsidiary of a bank holding company would not be
permitted to engage in, unless such business is de minimis, and (2)
whose members own assets the combined average value of which does not
exceed eight billion dollars, then the captive REIT or captive RIC must
not be included in a combined return under this subchapter. In that
instance, the captive REIT or captive RIC is subject to the provisions
of subdivision seven or eight of section 11-603 of this chapter. The
term "affiliated group" means "affiliated group" as defined in section
A. 10030 584
fifteen hundred four of the internal revenue code, but without regard to
the exceptions provided for in subsection (b) of such section.
(vi) For taxable years beginning on or after January first two thou-
sand eleven, a banking corporation doing business in the city solely
because it meets one or more of the tests in subparagraphs (i) through
(v) of paragraph one of subdivision (c) of section 11-639 of this chap-
ter, referred to in this subparagraph as the "credit card bank", will
not be included in a combined return pursuant to subparagraph (i) of
this paragraph with another banking corporation or bank holding company
which is doing business in the city unless the credit card bank or the
commissioner shows that the inclusion of the credit card bank in the
combined return is necessary to properly reflect the tax liability of
the credit card bank, the banking corporation or bank holding company
under this subchapter. However, any banking corporation that meets one
or more of the tests in subparagraphs (i) through (v) of paragraph one
of subsection (c) of section 11-639 of this chapter and was included in
a combined return for its last taxable year beginning before January
first, two thousand eleven may continue to be included in a combined
return for future taxable years, provided that once that banking corpo-
ration has been included in a combined return for any taxable year
beginning on or after January first, two thousand eleven, it must
continue to be included in a combined return until it obtains the
consent of the commissioner to cease being included in a combined return
because the combined return no longer properly reflects the tax liabil-
ity under this subchapter of any of the corporations included in the
combined return. Further, the credit card bank will be included in a
combined return with (A) any banking corporation not subject to tax
under this subchapter sixty-five percent or more of whose voting stock
is owned or controlled, directly or indirectly, by the credit card bank,
or (B) any banking corporation or bank holding company not subject to
tax under this subchapter which owns or controls, directly or indirect-
ly, sixty-five percent or more of the voting stock of the credit card
bank, or (C) any banking corporation not subject to tax under this
subchapter sixty-five percent or more of the voting stock of which is
owned or controlled, directly or indirectly, by the same corporation or
corporations that own or control, directly or indirectly, sixty-five
percent or more of the voting stock of the credit card bank, if the
corporation or corporations described in clauses (A), (B) and (C) of
this subparagraph provide services for or support to the credit card
bank's operations, unless the credit card bank or the commissioner shows
that the inclusion of any of those corporations in the combined return
fails to properly reflect the tax liability of the credit card bank. For
purposes of this subparagraph, services for or support to the credit
card bank's operations include such activities as billing, credit inves-
tigation and reporting, marketing, research, advertising, mailing,
customer service, information technology, lending and financing
services, and communications services, but will not include accounting,
legal or personnel services.
(3) (i) In the case of a combined return, the tax shall be measured by
the combined entire net income, combined alternative entire net income
or combined assets of all the corporations included in the return,
including any captive REIT or captive RIC. The allocation percentage
shall be computed based on the combined factors with respect to all the
corporations included in the combined return. In computing combined
entire net income and alternative entire net income intercorporate divi-
dends and all other intercorporate transactions shall be eliminated and
A. 10030 585
in computing combined assets intercorporate stockholdings and intercor-
porate bills, notes and accounts receivable and payable and other inter-
corporate indebtedness shall be eliminated.
(ii) In the case of a captive REIT required under this subdivision to
be included in a combined return, "entire net income" means "real estate
investment trust taxable income" as defined in paragraph two of subdivi-
sion (b) of section eight hundred fifty-seven, as modified by section
eight hundred fifty-eight, of the internal revenue code, plus the amount
taxable under paragraph three of subdivision (b) of section eight
hundred fifty-seven of that code, subject to the modifications required
by section 11-641 of this chapter. In the case of a captive RIC required
under this subdivision to be included in a combined return, "entire net
income" means "investment company taxable income" as defined in para-
graph two of subdivision (b) of section eight hundred fifty-two, as
modified by section eight hundred fifty-five, of the internal revenue
code, plus the amount taxable under paragraph three of subdivision (b)
of section eight hundred fifty-two of such code, subject to the modifi-
cations required by section 11-641 of this chapter. However, the
deduction under the internal revenue code for dividends paid by the
captive REIT or captive RIC to any member of the affiliated group that
includes the corporation that directly or indirectly owns over fifty
percent of the voting stock of the captive REIT or captive RIC shall be
limited to twenty-five percent for taxable years beginning on or after
January first, two thousand nine and before January first, two thousand
eleven and shall not be allowed for taxable years beginning on or after
January first, two thousand eleven. The term "affiliated group" means
"affiliated group" as defined in section fifteen hundred four of the
internal revenue code, but without regard to the exceptions provided for
in subsection (b) of such section.
(4) (i) In no event shall an item of income or expense of a corpo-
ration organized under the laws of a country other than the United
States be included in a combined return unless it is includible in
entire net income or alternative entire net income, as the case may be,
nor shall an asset of such a corporation be included in a combined
return unless it is included in taxable assets.
(ii) In no event shall a corporation organized under the laws of the
United States, this state or any other state, be included in a combined
return with a corporation organized under the laws of a country other
than the United States.
(iii) In no event shall a corporation which has made an election
pursuant to subdivision (d) of section 11-640 of this part to be subject
to the tax imposed by subchapter two of this chapter be included in a
combined return for those taxable years for which it is subject to the
tax imposed by subchapter two of this chapter.
(5) Tax liability under this part may be deemed to be improperly
reflected because of intercompany transactions or some agreement, under-
standing, arrangement or transaction referred to in subdivision (g) of
this section.
(g) In case it shall appear to the commissioner of finance that any
agreement, understanding or arrangement exists between the taxpayer and
any other corporation or any person or firm, whereby the activity, busi-
ness, income or assets of the taxpayer within the city is improperly or
inaccurately reflected, the commissioner of finance is authorized and
empowered, in his or her discretion and in such manner as he or she may
determine, to adjust items of income or deductions in computing entire
net income or alternative entire net income and to adjust assets, and to
A. 10030 586
adjust wages, salaries and other personal service compensation, receipts
or deposits in computing any allocation percentage, provided only that
entire net income or alternative entire net income be adjusted accord-
ingly and that any asset directly traceable to the elimination of any
receipt be eliminated from assets so as to accurately determine the tax.
If however, in the determination of the commissioner of finance, such
adjustments do not, or cannot effectively provide for the accurate
determination of the tax, the commissioner of finance shall be author-
ized to require the filing of a combined report by the taxpayer and any
such other corporations. Where (1) any taxpayer conducts its activity or
business under any agreement, arrangement or understanding in such
manner as either directly or indirectly to benefit its members or stock-
holders, or any of them, or any person or persons directly or indirectly
interested in such activity or business, by entering into any trans-
action at more or less than a fair price which, but for such agreement,
arrangement or understanding, might have been paid or received therefor,
or (2) any taxpayer enters into any transaction with another corporation
on such terms as to create an improper loss or net income, the commis-
sioner of finance may include in the entire net income or alternative
entire net income of the taxpayer the fair profits which, but for such
agreement, arrangement or understanding, the taxpayer might have derived
from such transaction.
§ 11-647 Payment of tax. (a) To the extent the tax imposed for
section 11-639 of this part shall not have been previously paid pursuant
to section 11-645 of this part:
(1) such tax, or the balance thereof, shall be payable to the commis-
sioner of finance in full at the time its return is required to be
filed, and
(2) such tax, or the balance thereof, imposed on any taxpayer which
ceased to exercise its franchise or to be subject to the tax imposed by
this part shall be payable to the commissioner of finance at the time
the return is required to be filed, provided such tax of a domestic
corporation which continues to possess its franchise shall be subject to
adjustment as the circumstances may require; all other taxes of any such
taxpayer, which pursuant to the provisions of this subdivision would
otherwise be payable subsequent to the time such return is required to
be filed, shall nevertheless be payable at such time.
(b) If the taxpayer, within the time prescribed by subdivision (c) of
section 11-646 of this part, shall have applied for an automatic exten-
sion of time to file its annual return and shall have paid to the
commissioner of finance on or before the date of such application is
filed an amount properly estimated as provided by said subdivision the
only amount payable in addition to the tax shall be interest at the
underpayment rate set by the commissioner of finance pursuant to section
11-687 of this chapter, or, if no rate is set, at the rate of seven and
one-half percent per annum upon the amount by which the tax, or portion
thereof payable on or before the date the return was required to be
filed, exceeds the amount so paid, provided that:
(1) an amount so paid shall be deemed properly estimated if it is
either: (i) not less than ninety per cent of the tax as finally deter-
mined, or (ii) not less than the tax shown on the taxpayer's return for
the preceding taxable year, if such preceding year was a taxable year of
twelve months; and
(2) the time when a return is required to be filed shall be determined
without regard to any extension of time for filing such return.
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(c) The commissioner of finance may grant a reasonable extension of
time for payment of any tax imposed by this part under such conditions
as the commissioner deems just and proper.
SUBCHAPTER 3-A
CORPORATE TAX OF 2015
Section 11-651 Applicability.
11-652 Definitions.
11-653 Imposition of tax; exemptions.
11-654 Computation of tax.
11-654.1 Net operating loss.
11-654.2 Receipts allocation.
11-654.3 Combined reports.
11-655 Reports.
11-656 Payment and lien of tax.
11-657 Declaration of estimated tax.
11-658 Payments on account of estimated tax.
11-659 Collection of taxes.
11-660 Limitations of time.
§ 11-651 Applicability. 1. Notwithstanding anything to the contrary in
this chapter, this subchapter shall apply to corporations for tax years
commencing on or after January first, two thousand fifteen, except that
it shall not apply to any corporation that (a) has an election in effect
under subsection (a) of section thirteen hundred sixty-two of the inter-
nal revenue code, as amended, or (b) is a qualified subchapter S subsid-
iary within the meaning of paragraph three of subsection (b) of section
thirteen hundred sixty-one of the internal revenue code, as amended, in
any tax year commencing on or after such date. Subchapters two and three
of this chapter shall not apply to corporations to which this subchapter
applies for tax years commencing on or after January first, two thousand
fifteen, except to the extent provided in this subchapter and to the
extent that the effect of the application of subchapters two and three
to tax years commencing prior to January first, two thousand fifteen
carries over to tax years commencing on or after January first, two
thousand fifteen.
2. Each reference in the tax law or this code to subchapters two or
three of this chapter, or any of the provisions thereof, shall be deemed
a reference also to this subchapter, and any of the applicable
provisions thereof, where appropriate and with all necessary modifica-
tions.
§ 11-652 Definitions. 1. (a) The term "corporation" includes (1) an
association within the meaning of paragraph three of subsection (a) of
section seventy-seven hundred one of the internal revenue code, includ-
ing, when applicable, a limited liability company, (2) a joint-stock
company or association, (3) a publicly traded partnership treated as a
corporation for purposes of the internal revenue code pursuant to
section seventy-seven hundred four thereof and (4) any business
conducted by a trustee or trustees wherein interest or ownership is
evidenced by certificate or other written instrument;
(b) (1) Notwithstanding paragraph (a) of this subdivision, an unincor-
porated organization that (i) is described in subparagraph one or three
of paragraph (a) of this subdivision, (ii) was subject to the provisions
of chapter five of this title for its taxable year beginning in nineteen
hundred ninety-five, and (iii) made a one-time election not to be treat-
ed as a corporation and, instead, to continue to be subject to the
provisions of chapter five of this title for its taxable years beginning
A. 10030 588
in nineteen hundred ninety-six and thereafter, shall continue to be
subject to the provisions of chapter five of this title for its taxable
years beginning in nineteen hundred ninety-six.
(2) An election under this paragraph shall continue to be in effect
until revoked by the unincorporated organization. An election under this
paragraph shall be revoked by the filing of a return under this subchap-
ter for the first taxable year with respect to which such revocation is
to be effective. Such return shall be filed on or before the due date,
determined with regard to extensions, for filing such return. In no
event shall such election or revocation be for a part of a taxable year.
(c) Notwithstanding paragraph (a) of this subdivision, a corporation
shall not include an entity classified as a partnership for federal
income tax purposes.
2. The term "subsidiary" means a corporation of which over fifty per
centum of the number of shares of stock entitling the holders thereof to
vote for the election of directors or trustees is owned by the taxpayer.
2-a. The term "taxpayer" means any corporation subject to tax under
this subchapter.
3. Intentionally omitted.
3-a. The term "stock" means an interest in a corporation that is
treated as equity for federal income tax purposes.
4. (a) The term "investment capital" means investments in stocks that:
(i) satisfy the definition of a capital asset under section one thousand
two hundred twenty-one of the internal revenue code at all times the
taxpayer owned such stocks during the taxable year; (ii) are held by the
taxpayer for investment for more than one year; (iii) the dispositions
of which are, or would be, treated by the taxpayer as generating long-
term capital gains or losses under the internal revenue code; (iv) for
stocks acquired on or after January first, two thousand fifteen, at any
time after the close of the day in which they are acquired, have never
been held for sale to customers in the regular course of business; and
(v) before the close of the day on which the stock was acquired, are
clearly identified in the taxpayer's records as stock held for invest-
ment in the same manner as required under paragraph one of subdivision
(a) of section one thousand two hundred thirty-six of the internal
revenue code for the stock of a dealer in securities to be eligible for
capital gain treatment, whether or not the taxpayer is a dealer of secu-
rities subject to section one thousand two hundred thirty-six, provided,
however, that for stock acquired prior to October first, two thousand
fifteen that was not subject to subdivision (a) of section one thousand
two hundred thirty-six of the internal revenue code, such identification
in the taxpayer's records must occur before October first, two thousand
fifteen. Stock in a corporation that is conducting a unitary business
with the taxpayer, stock in a corporation that is included in a combined
report with the taxpayer pursuant to the commonly owned group election
in subdivision three of section 11-654.3 of this subchapter, and stock
issued by the taxpayer shall not constitute investment capital. For
purposes of this subdivision, if the taxpayer owns or controls, directly
or indirectly, less than twenty percent of the voting power of the stock
of a corporation, that corporation will be presumed to be conducting a
business that is not unitary with the business of the taxpayer.
(b) There shall be deducted from investment capital any liabilities
which are directly or indirectly attributable to investment capital. If
the amount of those liabilities exceeds the amount of investment capi-
tal, the amount of investment capital shall be zero.
A. 10030 589
(c) Investment capital shall not include any such investments the
income from which is excluded from entire net income pursuant to the
provisions of paragraph (c-1) of subdivision eight of this section, and
that investment capital shall be computed without regard to liabilities
directly or indirectly attributable to such investments, but only if air
carriers organized in the United States and operating in the foreign
country or countries in which the taxpayer has its major base of oper-
ations and in which it is organized, resident or headquartered, if not
in the same country as its major base of operations, are not subject to
any tax based on or measured by capital imposed by such foreign country
or countries or any political subdivision thereof, or if taxed, are
provided an exemption, equivalent to that provided for herein, from any
tax based on or measured by capital imposed by such foreign country or
countries and from any such tax imposed by any political subdivision
thereof.
(d) If a taxpayer acquires stock that is a capital asset under section
one thousand two hundred twenty-one of the internal revenue code during
the taxable year and owns that stock on the last day of the taxable
year, it will be presumed, solely for the purposes of determining wheth-
er that stock should be classified as investment capital after it is
acquired, that the taxpayer held that stock for more than one year.
However, if the taxpayer does not in fact own that stock at the time it
actually files its original report for the taxable year in which it
acquired the stock, then such presumption shall not apply and the actual
period of time during which the taxpayer owned the stock shall be used
to determine whether the stock should be classified as investment capi-
tal after it is acquired. If the taxpayer relies on such presumption but
does not own the stock for more than one year, the taxpayer must
increase its total business capital in the immediately succeeding taxa-
ble year by the amount included in investment capital for that stock,
net of any liabilities attributable to that stock computed as provided
in paragraph (b) of this subdivision and must increase its business
income in the immediately succeeding taxable year by the amount of
income and net gains, but not less than zero, from that stock included
in investment income, less any interest deductions directly or indirect-
ly attributable to that stock, as provided in subdivision five of this
section.
(e) When income or gain from a debt obligation or other security
cannot be allocated to the city using the business allocation percentage
as a result of the United States constitutional principles, the debt
obligation or other security will be included in investment capital.
5. (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, in the discretion
of the commissioner of finance, any interest deductions allowable in
computing entire net income which are directly or indirectly attribut-
able to investment capital or investment income, provided, however, that
in no case shall investment income exceed entire net income.
(ii) If the amount of interest deductions subtracted under subpara-
graph (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 para-
graph comprises more than eight percent of the taxpayer's entire net
income, investment income determined without regard to such interest
A. 10030 590
deductions cannot exceed eight percent of the taxpayer's entire net
income.
(b) In lieu of subtracting from investment income the amount of those
interest deductions, the taxpayer may make a revocable election to
reduce its total investment income, determined after applying the limi-
tation in subparagraph (iii) of paragraph (a) of this subdivision, by
forty percent. If the taxpayer makes this election, the taxpayer must
also make the elections provided for in paragraphs (b) and (c) of subdi-
vision five-a of this section. If the taxpayer subsequently revokes this
election, the taxpayer must revoke the elections provided for in para-
graphs (b) and (c) of subdivision five-a of this section. A taxpayer
that does not make this election because it has no investment capital
will not be precluded from making those other elections.
(c) Investment income shall not include any amount treated as divi-
dends pursuant to section seventy-eight of the internal revenue code.
5-a. (a) The term "other exempt income" means the sum of exempt CFC
income and exempt unitary corporation dividends.
(b) "Exempt CFC income" means (i) except to the extent described in
subparagraph (ii) of this paragraph, the income required to be included
in the taxpayer's federal gross income pursuant to subsection (a) of
section nine hundred fifty-one of the internal revenue code, received
from a corporation that is conducting a unitary business with the
taxpayer but is not included in a combined report with the taxpayer, and
(ii) such income required to be included in the taxpayer's federal gross
income pursuant to subsection (a) of such section nine hundred fifty-one
of the internal revenue code by reason of subsection (a) of section nine
hundred sixty-five of the internal revenue code, as adjusted by
subsection (b) of section nine hundred sixty-five of the internal reven-
ue code, and without regard to subsection (c) of such section, received
from a corporation that is not included in a combined report with the
taxpayer, less, (iii) in the discretion of the commissioner of finance,
any interest deductions directly or indirectly attributable to that
income. In lieu of subtracting from its exempt CFC income the amount of
those interest deductions, the taxpayer may make a revocable election to
reduce its total exempt CFC income by forty percent. If the taxpayer
makes this election, the taxpayer must also make the elections provided
for in paragraph (b) of subdivision five of this section and paragraph
(c) of this subdivision. If the taxpayer subsequently revokes this
election, the taxpayer must revoke the elections provided for in para-
graph (b) of subdivision five of this section and paragraph (c) of this
subdivision. A taxpayer which does not make this election because it has
no exempt CFC income will not be precluded from making those other
elections. The income described in subparagraph (ii) of this paragraph
shall not constitute investment income.
(c) "Exempt unitary corporate dividends" means those dividends from a
corporation that is conducting a unitary business with the taxpayer but
is not included in a combined report with the taxpayer, less, in the
discretion of the commissioner of finance, any interest deductions
directly or indirectly attributable to such income. Other than dividend
income received from corporations that are taxable under chapter eleven
of this title, except for vendors of utility services that are also
taxable under this subchapter, or would be taxable under chapter eleven
of this title, except for vendors of utility services that are also
taxable under this subchapter, if subject to tax and corporations that
would have been taxable as insurance corporations under former part IV,
title R, chapter forty-six of the administrative code of the city of New
A. 10030 591
York as in effect on June thirtieth, nineteen hundred seventy-four, in
lieu of subtracting from this dividend income those interest deductions,
the taxpayer may make a revocable election to reduce the total amount of
this dividend income by forty percent. If the taxpayer makes this
election, the taxpayer must also make the elections provided for in
paragraph (b) of subdivision five of this section and paragraph (b) of
this subdivision. If the taxpayer subsequently revokes this election,
the taxpayer must revoke the elections provided for in paragraph (b) of
subdivision five of this section and paragraph (b) of this subdivision.
A taxpayer that does not make this election because it has not received
any exempt unitary corporation dividends or is precluded from making
this election for dividends received from corporations that are taxable
under chapter eleven of this title, except for vendors of utility
services that are also taxable under this subchapter, or would be taxa-
ble under chapter eleven of this title if subject to tax, except for
vendors of utility services that are also taxable under this subchapter,
shall not be precluded from making those other elections.
(d) If the taxpayer attributes interest deductions to other exempt
income and the amount deducted exceeds other exempt income, the excess
of the interest deductions over other exempt income must be added back
to entire net income. In no case shall other exempt income exceed entire
net income.
(e) Other exempt income shall not include any amount treated as divi-
dends pursuant to section seventy-eight of the internal revenue code.
6. (a) The term "business capital" means all assets, other than
investment capital and stock issued by the taxpayer, less liabilities
not deducted from investment capital; provided, however, business capi-
tal shall include only those assets the income, loss or expense of which
are properly reflected, or would have been properly reflected if not
fully depreciated or expensed or depreciated or expensed to a nominal
amount, in the computation of entire net income for the taxable year.
(b) Provided, further, "business capital" shall not include assets to
the extent employed for the purpose of generating income which is
excluded from entire net income pursuant to the provisions of paragraph
(c-1) of subdivision eight of this section and shall be computed without
regard to liabilities directly or indirectly attributable to such
assets, but only if air carriers organized in the United States and
operating in the foreign country or countries in which the taxpayer has
its major base of operations and in which it is organized, resident or
headquartered, if not in the same country as its major base of oper-
ations, are not subject to any tax based on or measured by capital
imposed by such foreign country or countries or any political subdivi-
sion thereof, or if taxed, are provided an exemption, equivalent to that
provided for herein, from any tax based on or measured by capital
imposed by such foreign country or countries and from any such tax
imposed by any political subdivision thereof.
7. The term "business income" means entire net income minus investment
income and other exempt income. In no event shall the sum of investment
income and other exempt income exceed entire net income. If the taxpayer
makes the election provided for in subparagraph one of paragraph (a) of
subdivision five of section 11-654.2 of this subchapter, then all income
from qualified financial instruments shall constitute business income.
8. The term "entire net income" means total net income from all sourc-
es, which shall be presumably the same as the entire taxable income,
which, except as hereafter provided in this subdivision,
A. 10030 592
(i) the taxpayer is required to report to the United States treasury
department, or
(ii) the taxpayer, in the case of a corporation that is exempt from
federal income tax, other than the tax on unrelated business taxable
income imposed under section five hundred eleven of the internal revenue
code, but which is subject to tax under this subchapter, would have been
required to report to the United States treasury department but for such
exemption, or
(iii) in the case of an alien corporation that under any provision of
the internal revenue code is not treated as a "domestic corporation" as
defined in section seven thousand seven hundred one of such code, is
effectively connected with the conduct of a trade or business within the
United States as determined under section eight hundred eighty-two of
the internal revenue code.
(a) Entire net income shall not include:
(1) Intentionally omitted;
(2) Intentionally omitted;
(2-a) any amounts treated as dividends pursuant to section seventy-
eight of the internal revenue code to the extent such dividends are not
deducted under section two hundred fifty of such code;
(3) bona fide gifts;
(4) income and deductions with respect to amounts received from school
districts and from corporations and associations, organized and operated
exclusively for religious, charitable or educational purposes, no part
of the net earnings of which inures to the benefit of any private share-
holder or individual, for the operation of school buses;
(5) any refund or credit of a tax imposed under this chapter, or
imposed by article nine, nine-A, twenty-three, or former article thir-
ty-two of the tax law, for which tax no exclusion or deduction was
allowed in determining the taxpayer's entire net income under this
subchapter, subchapter two, or subchapter three of this chapter for any
prior year;
(6) Intentionally omitted;
(7) that portion of wages and salaries paid or incurred for the taxa-
ble year for which a deduction is not allowed pursuant to the provisions
of section two hundred eighty-C of the internal revenue code;
(8) except with respect to property which is a qualified mass commut-
ing vehicle described in subparagraph (D) of paragraph eight of
subsection (f) of section one hundred sixty-eight of the internal reven-
ue code, relating to qualified mass commuting vehicles, and property of
a taxpayer principally engaged in the conduct of an aviation, steamboat,
ferry or navigation business, or two or more of such businesses, which
is placed in service before taxable years beginning in nineteen hundred
eighty-nine, any amount which is included in the taxpayer's federal
taxable income solely as a result of an election made pursuant to the
provisions of such paragraph eight as it was in effect for agreements
entered into prior to January first, nineteen hundred eighty-four;
(9) except with respect to property which is a qualified mass commut-
ing vehicle described in subparagraph (D) of paragraph eight of
subsection (f) of section one hundred sixty-eight of the internal reven-
ue code, relating to qualified mass commuting vehicles, and property of
a taxpayer principally engaged in the conduct of an aviation, steamboat,
ferry or navigation business, or two or more of such businesses, which
is placed in service before taxable years beginning in nineteen hundred
eighty-nine, any amount which the taxpayer could have excluded from
federal taxable income had it not made the election provided for in such
A. 10030 593
paragraph eight as it was in effect for agreements entered into prior to
January first, nineteen hundred eighty-four;
(10) the amount deductible pursuant to paragraph (j) of this subdivi-
sion;
(11) upon the disposition of property to which paragraph (j) of this
subdivision applies, the amount, if any, by which the aggregate of the
amounts described in subparagraph eleven of paragraph (b) of this subdi-
vision attributable to such property exceeds the aggregate of the
amounts described in paragraph (j) of this subdivision attributable to
such property;
(12) the amount deductible pursuant to paragraph (k) of this subdivi-
sion;
(13) the amount deductible pursuant to paragraph (o) of this subdivi-
sion;
(14) the amount computed pursuant to paragraph (q), (r) or (s) of this
subdivision, but only the amount determined pursuant to one of such
paragraphs; and
(15) the amount computed pursuant to paragraph (t) of this subdivi-
sion.
(16) The amount of any gain added back to determine entire net income
in a previous taxable year pursuant to subparagraph twenty-three of
paragraph (b) of subdivision eight of this section is included in feder-
al gross income for the taxable year.
(17) The amount of any grant received through either the COVID-19
pandemic small business recovery grant program, pursuant to section
sixteen-ff of the New York state urban development corporation act, or
the small business resilience grant program administered by the depart-
ment of small business services, to the extent the amount of either such
grant is included in federal taxable income.
(a-1) Notwithstanding any other provision of this subchapter, in the
case of a taxpayer that is a partner in a partnership subject to the tax
imposed by chapter eleven of this title as a utility, as defined in
subdivision six of section 11-1101 of such chapter, entire net income
shall not include the taxpayer's distributive or pro rata share for
federal income tax purposes of any item of income, gain, loss or
deduction of such partnership, or any item of income, gain, loss or
deduction of such partnership that the taxpayer is required to take into
account separately for federal income tax purposes.
(b) Entire net income shall be determined without the exclusion,
deduction or credit of:
(1) in the case of an alien corporation that under any provision of
the internal revenue code is not treated as a "domestic corporation" as
defined in section seven thousand seven hundred one of such code, (i)
any part of any income from dividends or interest on any kind of stock,
securities or indebtedness, but only if such income is treated as effec-
tively connected with the conduct of a trade or business in the United
States pursuant to section eight hundred sixty-four of the internal
revenue code, (ii) any income exempt from federal taxable income under
any treaty obligation of the United States, but only if such income
would be treated as effectively connected in the absence of such
exemption provided that such treaty obligation does not preclude the
taxation of such income by a state, or (iii) any income which would be
treated as effectively connected if such income were not excluded from
gross income pursuant to subsection (a) of section one hundred three of
the internal revenue code;
A. 10030 594
(2) any part of any income from dividends or interest of any kind of
stock, securities, or indebtedness;
(3) taxes on or measured by profits or income paid or accrued to the
United States, any of its possessions, territories or commonwealths,
including taxes in lieu of any of the foregoing taxes otherwise general-
ly imposed by any possession, territory or commonwealth of the United
States, or taxes paid or accrued to the state under article nine,
nine-A, thirteen-A or thirty-two of the tax law as in effect on December
thirty-first, two thousand fourteen;
(3-a) taxes on or measured by profits or income, or which include
profits or income as a measure, paid or accrued to any other state of
the United States, or any political subdivision thereof, or to the
District of Columbia, including taxes expressly in lieu of any of the
foregoing taxes otherwise generally imposed by any other state of the
United States, or any political subdivision thereof, or the District of
Columbia;
(4) taxes imposed under this chapter;
(4-a) Intentionally omitted;
(4-b) the amount allowed as an exclusion or a deduction imposed by the
tax law in determining the entire taxable income for a relocation
described in subdivision thirteen of section 11-654 of this subchapter
which the taxpayer is required to report to the United States treasury
department but only such portion of such exclusion or deduction which is
not in excess of the amount of the credit allowed pursuant to subdivi-
sion thirteen of section 11-654 of this subchapter;
(4-c) the amount allowed as an exclusion or a deduction imposed by the
tax law for a relocation described in subdivision fourteen of section
11-654 of this subchapter in determining the entire taxable income which
the taxpayer is required to report to the United States treasury depart-
ment but only such portion of such exclusion or deduction which is not
in excess of the amount of the credit allowed pursuant to subdivision
fourteen of section 11-654 of this subchapter;
(4-d) Intentionally omitted;
(4-e) Intentionally omitted;
(5) Intentionally omitted;
(6) any amount allowed as a deduction for the taxable year under
section one hundred seventy-two of the internal revenue code, including
carryovers of deductions from prior taxable years;
(7) any amount by reason of the granting, issuing or assuming of a
restricted stock option, as defined in the internal revenue code of
nineteen hundred fifty-four, or by reason of the transfer of the share
of stock upon the exercise of the option, unless such share is disposed
of by the grantee of the option within two years from the date of the
granting of the option or within six months after the transfer of such
share to the grantee;
(8) Intentionally omitted;
(9) except with respect to property which is a qualified mass commut-
ing vehicle described in subparagraph (D) of paragraph eight of
subsection (f) of section one hundred sixty-eight of the internal reven-
ue code, relating to qualified mass commuting vehicles, and property of
a taxpayer principally engaged in the conduct of an aviation, steamboat,
ferry or navigation business, or two or more of such businesses, which
is placed in service before taxable years beginning in nineteen hundred
eighty-nine, any amount which the taxpayer claimed as a deduction in
computing its federal taxable income solely as a result of an election
made pursuant to the provisions of such paragraph eight as it was in
A. 10030 595
effect for agreements entered into prior to January first, nineteen
hundred eighty-four;
(10) except with respect to property which is a qualified mass commut-
ing vehicle described in subparagraph (D) of paragraph eight of
subsection (f) of section one hundred sixty-eight of the internal reven-
ue code, relating to qualified mass commuting vehicles, and property of
a taxpayer principally engaged in the conduct of an aviation, steamboat,
ferry or navigation business, or two or more of such businesses, which
is placed in service before taxable years beginning in nineteen hundred
eighty-nine, any amount which the taxpayer would have been required to
include in the computation of its federal taxable income had it not made
the election permitted pursuant to such paragraph eight as it was in
effect for agreements entered into prior to January first, nineteen
hundred eighty-four;
(11) in the case of property placed in service in taxable years begin-
ning before nineteen hundred ninety-four, for taxable years beginning
after December thirty-first, nineteen hundred eighty-one, except with
respect to property subject to the provisions of section two hundred
eighty-F of the internal revenue code, property subject to the
provisions of section one hundred sixty-eight of the internal revenue
code which is placed in service in this state in taxable years beginning
after December thirty-first, nineteen hundred eighty-four and property
of a taxpayer principally engaged in the conduct of an aviation, steam-
boat, ferry or navigation business, or two or more of such businesses,
which is placed in service before taxable years beginning in nineteen
hundred eighty-nine, the amount allowable as a deduction determined
under section one hundred sixty-eight of the internal revenue code;
(12) upon the disposition of property to which paragraph (j) of this
subdivision applies, the amount, if any, by which the aggregate of the
amounts described in such paragraph (j) attributable to such property
exceeds the aggregate of the amounts described in subparagraph eleven of
this paragraph attributable to such property;
(13) Intentionally omitted;
(14) Intentionally omitted;
(15) Intentionally omitted;
(16) in the case of qualified property described in paragraph two of
subsection (k) of section one hundred sixty-eight of the internal reven-
ue code, other than qualified resurgence zone property described in
paragraph (m) of this subdivision, and other than qualified New York
Liberty Zone property described in paragraph two of subsection (b) of
section fourteen hundred-L of the internal revenue code, without regard
to clause (i) of subparagraph (C) of such paragraph, the amount allow-
able as a deduction under section one hundred sixty-seven of the inter-
nal revenue code;
(17) in the case of a taxpayer that is not an eligible farmer as
defined in subsection (n) of section six hundred six of the tax law, the
amount allowable as a deduction under sections one hundred seventy-nine,
one hundred sixty-seven and one hundred sixty-eight of the internal
revenue code with respect to a sport utility vehicle that is not a
passenger automobile as defined in paragraph five of subsection (d) of
section two hundred eighty-F of the internal revenue code;
(18) the amount of any deduction allowed pursuant to section one
hundred ninety-nine of the internal revenue code;
(19) the amount of any federal deduction for taxes imposed under arti-
cle twenty-three of the tax law;
A. 10030 596
(20) the amount of any federal deduction allowed pursuant to
subsection (c) of section nine hundred sixty-five of the internal reven-
ue code;
(21) the amount of any federal deduction allowed pursuant to subpara-
graph (A) of paragraph one of subdivision (a) of section two hundred
fifty of the internal revenue code.
(22) For taxable years beginning in two thousand nineteen and two
thousand twenty, the amount of the increase in the federal interest
deduction allowed pursuant to paragraph ten of subdivision (j) of
section one hundred sixty-three of the internal revenue code.
(23) The amount of any gain excluded from federal gross income for the
taxable year by subparagraph (A) of paragraph (1) of subsection (a) of
section one thousand four hundred-Z-two of the internal revenue code.
(c) Intentionally omitted.
(c-1)(1) Notwithstanding any other provision of this subchapter, in
the case of a taxpayer which is a foreign air carrier holding a foreign
air carrier permit issued by the United States department of transporta-
tion pursuant to section four hundred two of the federal aviation act of
nineteen hundred fifty-eight, as amended, and which is qualified under
subparagraph two of this paragraph, entire net income shall not include,
and shall be computed without the deduction of, amounts directly or
indirectly attributable to, (i) any income derived from the interna-
tional operation of aircraft as described in and subject to the
provisions of section eight hundred eighty-three of the internal revenue
code, (ii) income without the United States which is derived from the
operation of aircraft, and (iii) income without the United States which
is of a type described in subdivision (a) of section eight hundred
eighty-one of the internal revenue code except that it is derived from
sources without the United States. Entire net income shall include
income described in clauses (i), (ii) and (iii) of this subparagraph in
the case of taxpayers not described in the previous sentence;
(2) A taxpayer is qualified under this subparagraph if air carriers
organized in the United States and operating in the foreign country or
countries in which the taxpayer has its major base of operations and in
which it is organized, resident or headquartered, if not in the same
country as its major base of operations, are not subject to any income
tax or other tax based on or measured by income or receipts imposed by
such foreign country or countries or any political subdivision thereof,
or if so subject to such tax, are provided an exemption from such tax
equivalent to that provided for herein.
(d) The commissioner of finance may, whenever necessary in order to
properly reflect the entire net income of any taxpayer, determine the
year or period in which any item of income or deduction shall be
included, without regard to the method of accounting employed by the
taxpayer.
(e) The entire net income of any bridge commission created by act of
congress to construct a bridge across an international boundary means
its gross income less the expense of maintaining and operating its prop-
erties, the annual interest upon its bonds and other obligations, and
the annual charge for the retirement of such bonds or obligations at
maturity.
(f) Intentionally omitted.
(g) At the election of the taxpayer, a deduction shall be allowed for
expenditures paid or incurred during the taxable year for the
construction, reconstruction, erection or improvement of industrial
waste treatment facilities and air pollution control facilities.
A. 10030 597
(1)(i) The term "industrial waste treatment facilities" shall mean
facilities for the treatment, neutralization or stabilization of indus-
trial waste, as the term "industrial waste" is defined in section
17-0105 of the environmental conservation law, from a point immediately
preceding the point of such treatment, neutralization or stabilization
to the point of disposal, including the necessary pumping and transmit-
ting facilities, but excluding such facilities installed for the primary
purpose of salvaging materials which are usable in the manufacturing
process or are marketable.
(ii) The term "air pollution control facilities" shall mean facilities
which remove, reduce, or render less noxious air contaminants emitted
from an air contamination source, as the terms "air contaminant" and
"air contamination source" are defined in section 19-0107 of the envi-
ronmental conservation law, from a point immediately preceding the point
of such removal, reduction or rendering to the point of discharge of
air, meeting emission standards as established by the air pollution
control board, but excluding such facilities installed for the primary
purpose of salvaging materials which are usable in the manufacturing
process or are marketable and excluding those facilities which rely for
their efficacy on dilution, dispersion or assimilation of air contam-
inants in the ambient air after emission.
(2) However, such deduction shall be allowed only (i) with respect to
tangible property which is depreciable, pursuant to section one hundred
sixty-seven of the internal revenue code, having a situs in the city and
used in the taxpayer's trade or business, the construction, recon-
struction, erection or improvement of which, in the case of industrial
waste treatment facilities, is initiated on or after January first,
nineteen hundred sixty-six, and only for expenditures paid or incurred
prior to January first, nineteen hundred seventy-two, or which, in the
case of air pollution control facilities, is initiated on or after Janu-
ary first, nineteen hundred sixty-six, and
(ii) on condition that such facilities have been certified by the
state commissioner of environmental conservation or the state commis-
sioner's designated representative, in the same manner as provided for
in section 17-0707 or 19-0309 of the environmental conservation law, as
applicable, as complying with applicable provisions of the environmental
conservation law, the state sanitary code and regulations, permits or
orders issued pursuant thereto, and
(iii) on condition that entire net income for the taxable year and all
succeeding taxable years be computed without any deductions for such
expenditures or for depreciation of the same property other than the
deductions allowed by this paragraph except to the extent that the basis
of the property may be attributable to factors other than such expendi-
tures, or in case a deduction is allowable pursuant to this paragraph
for only a part of such expenditures, on condition that any deduction
allowed for federal income tax purposes for such expenditures or for
depreciation of the same property be proportionately reduced in comput-
ing entire net income for the taxable year and all succeeding taxable
years, and
(iv) where the election provided for in paragraph (d) of subdivision
three of section 11-604 of this chapter or the election provided for in
subdivision (k) of section 11-641 of this chapter has not been exercised
in respect to the same property.
(3)(i) If expenditures in respect to an industrial waste treatment
facility or an air pollution control facility have been deducted as
provided herein and if within ten years from the end of the taxable year
A. 10030 598
in which such deduction was allowed such property or any part thereof is
used for the primary purpose of salvaging materials which are usable in
the manufacturing process or are marketable, the taxpayer shall report
such change of use in its report for the first taxable year during which
it occurs, and the commissioner of finance may recompute the tax for the
year or years for which such deduction was allowed and any carryback or
carryover year, and may assess any additional tax resulting from such
recomputation within the time fixed by paragraph (h) of subdivision
three of section 11-674 of this chapter.
(ii) If a deduction is allowed as herein provided for expenditures
paid or incurred during any taxable year on the basis of a temporary
certificate of compliance issued pursuant to the environmental conserva-
tion law and if the taxpayer fails to obtain a permanent certificate of
compliance upon completion of the facilities with respect to which such
temporary certificate was issued, the taxpayer shall report such failure
in its report for the taxable year during which such facilities are
completed, and the commissioner of finance may recompute the tax for the
year or years for which such deduction was allowed and any carryback or
carryover year, and may assess any additional tax resulting from such
recomputation within the time fixed by paragraph (h) of subdivision
three of section 11-674 of this chapter.
(4) In any taxable year when property is sold or otherwise disposed
of, with respect to which a deduction has been allowed pursuant to this
paragraph, such deduction shall be disregarded in computing gain or
loss, and the gain or loss on the sale or other disposition of such
property shall be the gain or loss entering into the computation of
entire taxable income which the taxpayer is required to report to the
United States treasury for such taxable year;
(h) With respect to gain derived from the sale or other disposition of
any property acquired prior to January first, nineteen hundred sixty-
six; which had a federal adjusted basis on such date, or on the date of
its sale or other disposition prior to January first, nineteen hundred
sixty-six, lower than its fair market value on January first, nineteen
hundred sixty-six or the date of its sale or other disposition prior
thereto, except property described in subsections one and four of
section twelve hundred twenty-one of the internal revenue code, there
shall be deducted from entire net income, the difference between (1) the
amount of the taxpayer's federal taxable income, and (2) the amount of
the taxpayer's federal taxable income, if smaller than the amount
described in subparagraph one of this paragraph, computed as if the
federal adjusted basis of each such property, on the sale or other
disposition of which gain was derived, on the date of the sale or other
disposition had been equal to either (i) its fair market value on Janu-
ary first, nineteen hundred sixty-six or the date of its sale or other
disposition prior to January first, nineteen hundred sixty-six, plus or
minus all adjustments to basis made with respect to such property for
federal income tax purposes for periods on and after January first,
nineteen hundred sixty-six or (ii) the amount realized from its sale or
disposition, whichever is lower; provided, however, that the total
modification provided by this paragraph shall not exceed the amount of
the taxpayer's net gain from the sale or other disposition of all such
property.
(i) If the period covered by a report under this subchapter is other
than the period covered by the report of the United States treasury
department, entire net income shall be determined by multiplying the
federal taxable income, as adjusted pursuant to the provisions of this
A. 10030 599
subchapter, by the number of calendar months or major parts thereof
covered by the report under this subchapter and dividing by the number
of calendar months or major parts thereof covered by the report to such
department. If it shall appear that such method of determining entire
net income does not properly reflect the taxpayer's income during the
period covered by the report under this subchapter, the commissioner of
finance shall be authorized in his or her discretion to determine such
entire net income solely on the basis of the taxpayer's income during
the period covered by its report under this subchapter.
(j) In the case of property placed in service in taxable years begin-
ning before nineteen hundred ninety-four, for taxable years beginning
after December thirty-first, nineteen hundred eighty-one, except with
respect to property subject to the provisions of section two hundred
eighty-F of the internal revenue code and property subject to the
provisions of section one hundred sixty-eight of the internal revenue
code which is placed in service in this state in taxable years beginning
after December thirty-first, nineteen hundred eighty-four, and provided
a deduction has not been excluded from entire net income pursuant to
subparagraph nine of paragraph (b) of this subdivision, a taxpayer shall
be allowed with respect to property which is subject to the provisions
of section one hundred sixty-eight of the internal revenue code the
depreciation deduction allowable under section one hundred sixty-seven
of the internal revenue code as such section would have applied to prop-
erty placed in service on December thirty-first, nineteen hundred
eighty. This paragraph shall not apply to property of a taxpayer prin-
cipally engaged in the conduct of an aviation, steamboat, ferry or navi-
gation business, or two or more of such businesses, which is placed in
service before taxable years beginning in nineteen hundred eighty-nine.
(k) In the case of qualified property described in paragraph two of
subsection (k) of section one hundred sixty-eight of the internal reven-
ue code, other than qualified resurgence zone property described in
paragraph (m) of this subdivision, and other than qualified New York
Liberty Zone property described in paragraph two of subsection (b) of
section fourteen hundred-L of the internal revenue code, without regard
to clause (i) of subparagraph (C) of such paragraph, the depreciation
deduction allowable under section one hundred sixty-seven as such
section would have applied to such property had it been acquired by the
taxpayer on September tenth, two thousand one, provided, however, that
for taxable years beginning on or after January first, two thousand
four, in the case of a passenger motor vehicle or a sport utility vehi-
cle subject to the provisions of paragraph (o) of this subdivision, the
limitation under clause (i) of subparagraph (A) of paragraph one of
subdivision (a) of section two hundred eighty-F of the internal revenue
code applicable to the amount allowed as a deduction under this para-
graph shall be determined as of the date such vehicle was placed in
service and not as of September tenth, two thousand one.
(l) Upon the disposition of property to which paragraph (k) of this
subdivision applies, the amount of any gain or loss includible in entire
net income shall be adjusted to reflect the inclusions and exclusions
from entire net income pursuant to subparagraph twelve of paragraph (a)
and subparagraph sixteen of paragraph (b) of this subdivision attribut-
able to such property.
(m) For purposes of this paragraph and paragraph (l) of this subdivi-
sion, qualified resurgence zone property shall mean qualified property
described in paragraph two of subsection (k) of section one hundred
sixty-eight of the internal revenue code substantially all of the use of
A. 10030 600
which is in the resurgence zone, as defined below, and is in the active
conduct of a trade or business by the taxpayer in such zone, and the
original use of which in the resurgence zone commences with the taxpayer
after September tenth, two thousand one. The resurgence zone shall mean
the area of New York county bounded on the south by a line running from
the intersection of the Hudson River with the Holland Tunnel, and
running thence east to Canal Street, then running along the centerline
of Canal Street to the intersection of the Bowery and Canal Street,
running thence in a southeasterly direction diagonally across Manhattan
Bridge Plaza, to the Manhattan Bridge, and thence along the centerline
of the Manhattan Bridge to the point where the centerline of the Manhat-
tan Bridge would intersect with the easterly bank of the East River, and
bounded on the north by a line running from the intersection of the
Hudson River with the Holland Tunnel and running thence north along West
Avenue to the intersection of Clarkson Street then running east along
the centerline of Clarkson Street to the intersection of Washington
Avenue, then running south along the centerline of Washington Avenue to
the intersection of West Houston Street, then east along the centerline
of West Houston Street, then at the intersection of the Avenue of the
Americas continuing east along the centerline of East Houston Street to
the easterly bank of the East River.
(n) Related members expense add back. (1) For purposes of this para-
graph: (i) "Related member" means a related person as defined in subpar-
agraph (c) of paragraph three of subsection (b) of section four hundred
sixty-five of the internal revenue code, except that "fifty percent"
shall be substituted for "ten percent".
(ii) "Effective rate of tax" means, as to any city, the maximum statu-
tory rate of tax imposed by the city on or measured by a related
member's net income multiplied by the allocation percentage, if any,
applicable to the related member under the laws of said jurisdiction.
For purposes of this definition, the effective rate of tax as to any
city is zero where the related member's net income tax liability in said
city is reported on a combined or consolidated return including both the
taxpayer and the related member where the reported transactions between
the taxpayer and the related member are eliminated or offset. Also, for
purposes of this definition, when computing the effective rate of tax
for a city in which a related member's net income is eliminated or
offset by a credit or similar adjustment that is dependent upon the
related member either maintaining or managing intangible property or
collecting interest income in that city, the maximum statutory rate of
tax imposed by said city shall be decreased to reflect the statutory
rate of tax that applies to the related member as effectively reduced by
such credit or similar adjustment.
(iii) Royalty payments are payments directly connected to the acquisi-
tion, use, maintenance or management, ownership, sale, exchange, or any
other disposition of licenses, trademarks, copyrights, trade names,
trade dress, service marks, mask works, trade secrets, patents and any
other similar types of intangible assets as determined by the commis-
sioner of finance, and include amounts allowable as interest deductions
under section one hundred sixty-three of the internal revenue code to
the extent such amounts are directly or indirectly for, related to or in
connection with the acquisition, use, maintenance or management, owner-
ship, sale, exchange or disposition of such intangible assets.
(iv) A valid business purpose is one or more business purposes, other
than the avoidance or reduction of taxation, which alone or in combina-
tion constitute the primary motivation for some business activity or
A. 10030 601
transaction, which activity or transaction changes in a meaningful way,
apart from tax effects, the economic position of the taxpayer. The
economic position of the taxpayer includes an increase in the market
share of the taxpayer, or the entry by the taxpayer into new business
markets.
(2) Royalty expense add backs. (i) Except where a taxpayer is included
in a combined report pursuant to section 11-654.3 of this subchapter
with the applicable related member, for the purpose of computing entire
net income or other applicable taxable basis, a taxpayer must add back
royalty payments directly or indirectly paid, accrued, or incurred in
connection with one or more direct or indirect transactions with one or
more related members during the taxable year to the extent deductible in
calculating federal taxable income.
(ii) Exceptions. (A) The adjustment required in this paragraph shall
not apply to the portion of the royalty payment that the taxpayer estab-
lishes, by clear and convincing evidence of the type and in the form
specified by the commissioner of finance, meets all of the following
requirements: (I) the related member was subject to tax in this city or
another city within the United States or a foreign nation or some combi-
nation thereof on a tax base that included the royalty payment paid,
accrued or incurred by the taxpayer; (II) the related member during the
same taxable year directly or indirectly paid, accrued or incurred such
portion to a person that is not a related member; and (III) the trans-
action giving rise to the royalty payment between the taxpayer and the
related member was undertaken for a valid business purpose.
(B) The adjustment required in this paragraph shall not apply if the
taxpayer establishes, by clear and convincing evidence of the type and
in the form specified by the commissioner of finance, that: (I) the
related member was subject to tax on or measured by its net income in
this city or another city within the United States, or some combination
thereof; (II) the tax base for said tax included the royalty payment
paid, accrued or incurred by the taxpayer; and (III) the aggregate
effective rate of tax applied to the related member in those jurisdic-
tions is no less than eighty percent of the statutory rate of tax that
applied to the taxpayer under section 11-604 of this chapter for the
taxable year.
(C) The adjustment required in this paragraph shall not apply if the
taxpayer establishes, by clear and convincing evidence of the type and
in the form specified by the commissioner of finance, that: (I) the
royalty payment was paid, accrued or incurred to a related member organ-
ized under the laws of a country other than the United States; (II) the
related member's income from the transaction was subject to a comprehen-
sive income tax treaty between such country and the United States; (III)
the related member was subject to tax in a foreign nation on a tax base
that included the royalty payment paid, accrued or incurred by the
taxpayer; (IV) the related member's income from the transaction was
taxed in such country at an effective rate of tax at least equal to that
imposed by this city; and (V) the royalty payment was paid, accrued or
incurred pursuant to a transaction that was undertaken for a valid busi-
ness purpose and using terms that reflect an arm's length relationship.
(D) The adjustment required in this paragraph shall not apply if the
taxpayer and the commissioner of finance agree in writing to the appli-
cation or use of alternative adjustments or computations. The commis-
sioner of finance may, in his or her discretion, agree to the applica-
tion or use of alternative adjustments or computations when he or she
A. 10030 602
concludes that in the absence of such agreement the income of the
taxpayer would not be properly reflected.
(o) In the case of a taxpayer that is not an eligible farmer as
defined in subsection (n) of section six hundred six of the tax law, the
deductions allowable under sections one hundred seventy-nine, one
hundred sixty-seven and one hundred sixty-eight of the internal revenue
code with respect to a sport utility vehicle that is not a passenger
automobile as defined in paragraph five of subsection (d) of section two
hundred eighty-F of the internal revenue code, determined as if such
sport utility vehicle were a passenger automobile as defined in such
paragraph five. For purposes of subparagraph sixteen of paragraph (b)
and paragraph (k) of this subdivision, the terms qualified resurgence
zone property and qualified New York Liberty Zone property described in
paragraph two of subsection b of section fourteen hundred-L of the
internal revenue code shall not include any sport utility vehicle that
is not a passenger automobile as defined in paragraph five of subsection
(d) of section two hundred eighty-F of the internal revenue code.
(p) Upon the disposition of property to which paragraph (o) of this
subdivision applies, the amount of any gain or loss includible in entire
net income shall be adjusted to reflect the inclusions and exclusions
from entire net income pursuant to subparagraph thirteen of paragraph
(a) and subparagraph seventeen of paragraph (b) of this subdivision
attributable to such property.
(q) Subtraction modification for community banks and small thrifts.
(1) A taxpayer that is a qualified community bank as defined in subpara-
graph two of this paragraph or a small thrift institution as defined in
subparagraph two-a of this paragraph shall be allowed a deduction in
computing entire net income equal to the amount computed under subpara-
graph three of this paragraph.
(2) To be a qualified community bank, a taxpayer must satisfy the
following conditions:
(i) It is a bank or trust company organized under or subject to the
provisions of article three of the banking law or a comparable provision
of the laws of another state, or a national banking association.
(ii) The average value during the taxable year of the assets of the
taxpayer, or, if the taxpayer is included in a combined report, the
assets of the combined reporting group of the taxpayer under section
11-654.3 of this subchapter, must not exceed eight billion dollars.
(2-a) To be a small thrift institution, a taxpayer must satisfy the
following conditions:
(i) It is a savings bank, a savings and loan association, or other
savings institution chartered and supervised as such under federal or
state law.
(ii) The average value during the taxable year of the assets of the
taxpayer, or, if the taxpayer is included in a combined report, the
assets of the combined reporting group of the taxpayer under section
11-654.3 of this subchapter, must not exceed eight billion dollars.
(3)(i) The subtraction modification shall be computed as follows:
(A) Multiply the taxpayer's net interest income from loans during the
taxable year by a fraction, the numerator of which is the gross interest
income during the taxable year from qualifying loans and the denominator
of which is the gross interest income during the taxable year from all
loans.
(B) Multiply the amount determined in subclause (A) of this clause by
fifty percent. This product is the amount of the deduction allowed under
this paragraph.
A. 10030 603
(ii)(A) Net interest income from loans shall mean gross interest
income from loans less gross interest expense from loans. Gross interest
expense from loans is determined by multiplying gross interest expense
by a fraction, the numerator of which is the average total value of
loans owned by the thrift institution or community bank during the taxa-
ble year and the denominator of which is the average total assets of the
thrift institution or community bank during the taxable year.
(B) Measurement of assets. For purposes of this clause: (I) Total
assets are those assets that are properly reflected on a balance sheet,
computed in the same manner as is required by the banking regulator of
the taxpayers included in the combined return. In addition, total assets
includes leased real property that is not properly reflected on a
balance sheet.
(II) Assets will only be included if the income or expenses of which
are properly reflected, or would have been properly reflected if not
fully depreciated or expensed, or depreciated or expensed to a nominal
amount, in the computation of the taxpayer's entire net income for the
taxable year. Assets will not include deferred tax assets and intangible
assets identified as "goodwill".
(III) Tangible real and personal property, such as buildings, land,
machinery, and equipment, shall be valued at cost. Leased real property
that is not properly reflected on the balance sheet will be valued at
the annual lease payment multiplied by eight. Intangible property, such
as loans and investments, shall be valued at book value exclusive of
reserves.
(IV) Average assets are computed using the assets measured on the
first day of the taxable year, and on the last day of each subsequent
quarter of the taxable year or month or day during the taxable year.
(iii) A qualifying loan is a loan that meets the conditions specified
in subclause (A) of this clause and subclause (B) of this clause.
(A) The loan is originated by the qualified community bank or small
thrift institution or purchased by the qualified community bank or small
thrift institution immediately after its origination in connection with
a commitment to purchase made by the bank or thrift institution prior to
the loan's origination.
(B) The loan is a small business loan or a residential mortgage loan,
the principal amount of which loan is five million dollars or less, and
either the borrower is located in this city as determined under section
11-654.2 of this subchapter and the loan is not secured by real proper-
ty, or the loan is secured by real property located in the city.
(C) A loan that meets the definition of a qualifying loan in a prior
taxable year, including years prior to the effective date of this para-
graph, remains a qualifying loan in taxable years during and after which
such loan is acquired by another corporation in the taxpayer's combined
reporting group under section 11-654.3 of this subchapter.
(r) A small thrift institution or a qualified community bank, as
defined in paragraph (q) of this subdivision, that maintained a captive
REIT on April first, two thousand fourteen shall utilize a REIT
subtraction equal to one hundred sixty percent of the dividends paid
deductions allowed to that captive REIT for the taxable year for federal
income tax purposes and shall not be allowed to utilize the subtraction
modification for community banks and small thrifts under paragraph (q)
of this subdivision or the subtraction modification for qualified resi-
dential loan portfolios under paragraph (s) of this subdivision in any
tax year in which such thrift institution or community bank maintains
that captive REIT.
A. 10030 604
(s) Subtraction modification for qualified residential loan portfo-
lios. (1)(i) A taxpayer that is either a thrift institution as defined
in subparagraph three of this paragraph or a qualified community bank as
defined in subparagraph two of paragraph (q) of this subdivision and
maintains a qualified residential loan portfolio as defined in subpara-
graph two of this paragraph shall be allowed as a deduction in computing
entire net income the amount, if any, by which (A) thirty-two percent of
its entire net income determined without regard to this paragraph
exceeds (B) the amounts deducted by the taxpayer pursuant to sections
one hundred sixty-six and five hundred eighty-five of the internal
revenue code less any amounts included in federal taxable income as a
result of a recovery of a loan.
(ii)(A) If the taxpayer is in a combined report under section 11-654.3
of this subchapter, this deduction will be computed on a combined basis.
In that instance, the entire net income of the combined reporting group
for purposes of this paragraph shall be multiplied by a fraction, the
numerator of which is the average total assets of all the thrift insti-
tutions and qualified community banks included in the combined report
and the denominator of which is the average total assets of all the
corporations included in the combined report.
(B) Measurement of assets. For purposes of this paragraph: (I) Total
assets are those assets that are properly reflected on a balance sheet,
computed in the same manner as is required by the banking regulator of
the taxpayers included in the combined return. In addition, total assets
includes leased real property that is not properly reflected on a
balance sheet.
(II) Assets will only be included if the income or expenses of which
are properly reflected, or would have been properly reflected if not
fully depreciated or expensed, or depreciated or expensed to a nominal
amount, in the computation of the combined group's entire net income for
the taxable year. Assets will not include deferred tax assets and intan-
gible assets identified as "goodwill".
(III) Tangible real and personal property, such as buildings, land,
machinery, and equipment shall be valued at cost. Leased real property
that is not properly reflected on a balance sheet will be valued at the
annual lease payment multiplied by eight. Intangible property, such as
loans and investments, shall be valued at book value exclusive of
reserves.
(IV) Intercorporate stockholdings and bills, notes and accounts
receivable, and other intercorporate indebtedness between the corpo-
rations included in the combined report shall be eliminated.
(V) Average assets are computed using the assets measured on the first
day of the taxable year, and on the last day of each subsequent quarter
of the taxable year or month or day during the taxable year.
(2) Qualified residential loan portfolio. (i) A taxpayer maintains a
qualified residential loan portfolio if at least sixty percent of the
amount of the total assets at the close of the taxable year of the
thrift institution or qualified community bank consists of the assets
described in subclauses (A) through (L) of this clause, with the appli-
cation of the rule in the last undesignated subclause of this clause. If
the taxpayer is a member of a combined group, the determination of
whether there is a qualified residential loan portfolio will be made by
aggregating the assets of the thrift institutions and qualified communi-
ty banks that are members of the combined group. Assets: (A) cash, which
includes cash and cash equivalents including cash items in the process
of collection, deposits with other financial institutions, including
A. 10030 605
corporate credit unions, balances with federal reserve banks and federal
home loan banks, federal funds sold, and cash and cash equivalents on
hand. Cash shall not include any balances serving as collateral for
securities lending transactions; (B) obligations of the United States or
of a state or political subdivision thereof, and stock or obligations of
a corporation which is an instrumentality or a government sponsored
enterprise of the United States or of a state or political subdivision
thereof; (C) loans secured by a deposit or share of a member; (D) loans
secured by an interest in real property which is, or, from the proceeds
of the loan, will become, residential real property or real property
used primarily for church purposes, loans made for the improvement of
residential real property or real property used primarily for church
purposes, provided that for purposes of this subclause, residential real
property shall include single or multi-family dwellings, facilities in
residential developments dedicated to public use or property used on a
nonprofit basis for residents, and mobile homes not used on a transient
basis; (E) property acquired through the liquidation of defaulted loans
described in subclause (D) of this clause; (F) any regular or residual
interest in a REMIC, as such term is defined in section eight hundred
sixty-D of the internal revenue code, but only in the proportion which
the assets of such REMIC consist of property described in subclauses (A)
through (E) of this clause, except that if ninety-five percent or more
of the assets of such REMIC are assets described in such subclauses, the
entire interest in the REMIC shall qualify; (G) any mortgage-backed
security which represents ownership of a fractional undivided interest
in a trust, the assets of which consist primarily of mortgage loans,
provided that the real property which serves as security for the loans
is, or from the proceeds of the loan, will become, the type of property
described in subclause (D) of this clause and any collateralized mort-
gage obligation, the security for which consists primarily of mortgage
loans that maintain as security the type of property described in
subclause (D) of this clause; (H) certificates of deposit in, or obli-
gations of, a corporation organized under a state law which specifically
authorizes such corporation to insure the deposits or share accounts of
member associations; (I) loans secured by an interest in educational,
health, or welfare institutions or facilities, including structures
designed or used primarily for residential purposes for students, resi-
dents, and persons under care, employees, or members of the staff of
such institutions or facilities; (J) loans made for the payment of
expenses of college or university education or vocational training; (K)
property used by the taxpayer in support of business which consists
principally of acquiring the savings of the public and investing in
loans; and (L) loans for which the taxpayer is the creditor and which
are wholly secured by loans described in subclause (D) of this clause.
The value of accrued interest receivable and any loss-sharing commit-
ment or other loan guaranty by a governmental agency will be considered
part of the basis in the loans to which the accrued interest or loss
protection applies.
(ii) At the election of the taxpayer, the percentage specified in
clause (i) of this subparagraph shall be applied on the basis of the
average assets outstanding during the taxable year, in lieu of the close
of the taxable year. The taxpayer can elect to compute an average using
the assets measured on the first day of the taxable year and on the last
day of each subsequent quarter, or month or day during the taxable year.
This election may be made annually.
A. 10030 606
(iii) For purposes of subclause (D) of clause (i) of this subpara-
graph, if a multifamily structure securing a loan is used in part for
nonresidential use purposes, the entire loan is deemed a residential
real property loan if the planned residential use exceeds eighty percent
of the property's planned use, measured, at the taxpayer's election, by
using square footage or gross rental revenue, and determined as of the
time the loan is made.
(iv) For purposes of subclause (D) of clause (i) of this subparagraph,
loans made to finance the acquisition or development of land shall be
deemed to be loans secured by an interest in residential real property
if there is a reasonable assurance that the property will become resi-
dential real property within a period of three years from the date of
acquisition of such land; provided, however, this shall not apply for
any taxable year unless, within such three-year period, such land
becomes residential real property. For purposes of determining whether
any interest in a REMIC qualifies under subclause (F) of clause (i) of
this subparagraph, any regular interest in another REMIC held by such
REMIC shall be treated as a loan described in subclauses (A) through (E)
under principles similar to the principle of such subclause (F), except
that if such REMICs are part of a tiered structure, they shall be treat-
ed as one REMIC for purposes of such subclause (F).
(3) For purposes of this paragraph, a "thrift institution" is a
savings bank, a savings and loan association, or other savings institu-
tion chartered and supervised as such under federal or state law.
(t) Subtraction modification for qualified affordable housing and low
income community loans.
(1) A taxpayer that owns a qualifying loan within the meaning of
clause (iii) of subparagraph two of this paragraph shall be allowed a
deduction in computing entire net income equal to the amount computed
under subparagraph two of this paragraph.
(2)(i) The deduction allowed in subparagraph one of this paragraph
shall be equal to:
(A) if the total average value during the taxable year of the assets
of the taxpayer, or if the taxpayer is included in a combined report,
the assets of the combined reporting group of the taxpayer under section
11-654.3 of this subchapter, does not exceed one hundred billion
dollars, the taxpayer's net interest income from qualifying loans, or
(B) if the total average value during the taxable year of the assets
of the taxpayer, or if the taxpayer is included in a combined report,
the assets of the combined reporting group of the taxpayer under section
11-654.3 of this subchapter, exceeds one hundred billion dollars but is
less than one hundred fifty billion dollars, the taxpayer's net interest
income from qualifying loans multiplied by a fraction, the numerator of
which is one hundred fifty billion dollars minus the total average value
during the taxable year of the assets of the taxpayer, or if the taxpay-
er is included in a combined report, the assets of the combined report-
ing group of the taxpayer under section 11-654.3 of this subchapter, and
the denominator of which is fifty billion dollars.
(ii)(A) Net interest income from qualifying loans shall mean the
taxpayer's net interest income from loans during the taxable year multi-
plied by a fraction, the numerator of which is the gross interest income
during the taxable year from qualifying loans and the denominator of
which is the gross interest income from all loans.
(B) Net interest income from loans shall mean gross interest income
during the taxable year from loans less gross interest expense from
loans. Gross interest expense from loans is determined by multiplying
A. 10030 607
gross interest expense by a fraction, the numerator of which is the
average total value of loans owned by the taxpayer during the taxable
year and the denominator of which is the average total assets of the
taxpayer for the year.
(C) Measurement of assets. For purposes of this paragraph:
(I) Total assets are those assets that are properly reflected on a
balance sheet, computed in the same manner as is required by the banking
regulator, if applicable, of the taxpayers included in the combined
return. In addition, total assets includes leased real property that is
not properly reflected on a balance sheet.
(II) Assets will only be included if the income or expenses of which
are properly reflected, or would have been properly reflected if not
fully depreciated or expensed, or depreciated or expensed to a nominal
amount, in the computation of the taxpayer's entire net income for the
taxable year. Assets will not include deferred tax assets and intangible
assets identified as "goodwill".
(III) Tangible real and personal property, such as buildings, land,
machinery, and equipment, shall be valued at cost. Leased real property
that is not properly reflected on a balance sheet will be valued at the
annual lease payment multiplied by eight. Intangible property, such as
loans and investments, shall be valued at book value exclusive of
reserves.
(IV) Average assets are computed using the assets measured on the
first day of the taxable year, and on the last day of each subsequent
quarter of the taxable year or month or day during the taxable year.
(iii) A qualifying loan is a loan that meets the conditions specified
in subclause (A) through subclause (E) of this clause.
(A) The loan is originated by the taxpayer lender or purchased by the
taxpayer immediately after its origination in connection with a commit-
ment to purchase made by the taxpayer prior to the loan's origination.
(B) Satisfies conditions of item (I) or (II) of this subclause.
(I) The loan is secured by a housing accommodation located within the
city, where there are rental units in such housing accommodation that
are qualifying units, which for purposes of this subclause, means units
subject to rent control, rent stabilization or to a regulatory agree-
ment, provided that, each such loan will be considered a qualifying loan
for purposes of this paragraph only in proportion to a percentage equal
to the number of qualifying units divided by the total number of all
residential and commercial units located on the site of the real proper-
ty securing the loan, as determined as of the date the loan is made.
(II) To the extent not included in item (I) of this subclause, loans
secured by residential real property located in a low-income community.
For purposes of this paragraph, low-income community areas are census
tracts within the city in which the poverty rate for such tract is at
least twenty percent and the median family income for such tract does
not exceed eighty percent of metropolitan area median family income.
This determination will be made by reference to the poverty and median
family income census data for application of section forty-five-D of the
internal revenue code.
(C) The loan is not treated as a qualifying loan in the computation of
a subtraction from entire net income pursuant to paragraph (q) of this
subdivision.
(D) If the taxpayer applies a subtraction pursuant to paragraph (r) of
this subdivision, the interest or net gains from the loan are not recog-
nized by a captive REIT as defined in section 11-601 of this chapter.
A. 10030 608
(E) A loan that meets the definition of a qualifying loan in a prior
taxable year, including years prior to the effective date of this para-
graph, remains a qualifying loan in taxable years during and after which
such loan is acquired by another corporation in the taxpayer's combined
reporting group under section 11-654.3 of this subchapter.
(iv) For purposes of this paragraph, the following terms shall mean:
(A) "Housing accommodations" shall mean a multiple dwelling that
contains at least five dwelling units together with the land on which
such structure is situated.
(B) "Regulatory agreement" shall mean a written agreement with or
approved by any local, municipal, state, federal or other government
agency that requires the provision of housing accommodations for fami-
lies and persons of low or moderate income, and binds the owner of such
real property and its successors and assigns. A regulatory agreement may
include such other terms and conditions as the locality, municipality,
state, or federal government shall determine.
(C) "Rent stabilization" shall mean, collectively, the rent stabiliza-
tion law of nineteen hundred sixty-nine, the rent stabilization code,
and the emergency tenant protection act of nineteen seventy-four,
together with any successor statutes or regulations addressing substan-
tially the same subject matter.
9. (a) The term "calendar year" means a period of twelve calendar
months, or any shorter period beginning on the date the taxpayer becomes
subject to the tax imposed by this subchapter, ending on the thirty-
first day of December, provided the taxpayer keeps its books on the
basis of such period or on the basis of any period ending on any day
other than the last day of a calendar month, or provided the taxpayer
does not keep books, and includes, in case the taxpayer changes the
period on the basis of which it keeps its books from a fiscal year to a
calendar year, the period from the close of its last old fiscal year up
to and including the following December thirty-first.
(b) The term "fiscal year" means a period of twelve calendar months,
or any shorter period beginning on the date the taxpayer becomes subject
to the tax imposed by this subchapter, ending on the last day of any
month other than December, provided the taxpayer keeps its books on the
basis of such period, and includes, in case the taxpayer changes the
period on the basis of which it keeps its books from a calendar year to
a fiscal year or from one fiscal year to another fiscal year, the period
from the close of its last old calendar or fiscal year up to the date
designated as the close of its new fiscal year.
10. The term "tangible personal property" means corporeal personal
property, such as machinery, tools, implements, goods, wares and
merchandise, and does not mean money, deposits in banks, shares of
stock, bonds, notes, credits or evidences of an interest property and
evidences of debt.
11. The term "internal revenue code" means, unless otherwise specif-
ically stated in this subchapter, the internal revenue code of 1986, as
amended.
12. The term "combinable captive insurance company" means an entity
that is treated as an association taxable as a corporation under the
internal revenue code:
(a) more than fifty percent of the voting stock of which is owned or
controlled, directly or indirectly, by a single entity that is treated
as an association taxable as a corporation under the internal revenue
code and not exempt from federal income tax;
A. 10030 609
(b) that is licensed as a captive insurance company under the laws of
this state or another jurisdiction;
(c) whose business includes providing, directly and indirectly, insur-
ance or reinsurance covering the risks of its parent and/or members of
its affiliated group; and
(d) fifty percent or less of whose gross receipts for the taxable year
consist of premiums from arrangements that constitute insurance for
federal income tax purposes.
For purposes of this subdivision, "affiliated group" has the same
meaning as that term is given in section fifteen hundred four of the
internal revenue code, except that the term "common parent corporation"
in that section is deemed to mean any person, as defined in section
seven thousand seven hundred one of the internal revenue code and refer-
ences to "at least eighty percent" in section fifteen hundred four of
the internal revenue code are to be read as "fifty percent or more;"
section fifteen hundred four of the internal revenue code is to be read
without regard to the exclusions provided for in subsection (b) of that
section; "premiums" has the same meaning as that term is given in para-
graph one of subdivision (c) of section fifteen hundred ten of the tax
law, except that it includes consideration for annuity contracts and
excludes any part of the consideration for insurance, reinsurance or
annuity contracts that do not provide bona fide insurance, reinsurance
or annuity benefits; and "gross receipts" includes the amounts included
in gross receipts for purposes of paragraph fifteen of subsection (c) of
section five hundred one of the internal revenue code, except that those
amounts also include all premiums as defined in this subdivision.
13. The term "partnership" includes a syndicate, group, pool, joint
venture, or other unincorporated organization, through or by means of
which any business, financial operation, or venture is carried on, and
which is not a corporation as defined in subdivision one of this
section, or a trust or estate that is separate from its owner under part
one of subchapter J of chapter one of subtitle A of the internal revenue
code; and the term "partner" includes a member in such syndicate, group,
pool, joint venture, or organization.
§ 11-653 Imposition of tax; exemptions. 1. (a) For the privilege of
doing business, or of employing capital, or of owning or leasing proper-
ty in the city in a corporate or organized capacity, or of maintaining
an office in the city, or of deriving receipts from activity in the
city, for all or any part of each of its fiscal or calendar years, every
domestic or foreign corporation, except corporations specified in subdi-
vision four of this section, shall annually pay a tax, upon the basis of
its business income, or upon such other basis as may be applicable as
hereinafter provided, for such fiscal or calendar year or part thereof,
on a report which shall be filed, except as hereinafter provided, on or
before the fifteenth day of March next succeeding the close of each such
year, or, in the case of a taxpayer which reports on the basis of a
fiscal year, within two and one-half months after the close of such
fiscal year, and shall be paid as hereinafter provided.
(b) A corporation is deriving receipts from activity in the city if it
has receipts within the city of one million dollars or more in a taxable
year. For purposes of this section, the term "receipts" means the
receipts that are subject to the allocation rules set forth in section
11-654.2 of this subchapter, and the term "receipts within the city"
means the receipts included in the numerator of the receipts fraction
determined under section 11-654.2 of this subchapter. For purposes of
A. 10030 610
this paragraph, receipts from processing credit card transactions for
merchants include merchant discount fees received by the corporation.
(c) A corporation is doing business in the city if (1) it has issued
credit cards to one thousand or more customers who have a mailing
address within the city as of the last day of its taxable year, (2) it
has merchant customer contracts with merchants and the total number of
locations covered by those contracts equals one thousand or more
locations in the city to whom the corporation remitted payments for
credit card transactions during the taxable year, or (3) the sum of the
number of customers described in subparagraph one of this paragraph plus
the number of locations covered by its contracts described in subpara-
graph two of this paragraph equals one thousand or more. As used in this
subdivision, the term "credit card" includes bank, credit, travel and
entertainment cards.
(d)(1) A corporation with less than one million dollars but at least
ten thousand dollars of receipts within the city in a taxable year that
is part of a unitary group that meets the ownership test under section
11-654.3 of this subchapter is deriving receipts from activity in the
city if the receipts within the city of the members of the unitary group
that have at least ten thousand dollars of receipts within the city in
the aggregate meet the threshold set forth in paragraph (b) of this
subdivision.
(2) A corporation that does not meet any of the thresholds set forth
in paragraph (c) of this subdivision but has at least ten customers, or
locations, or customers and locations, as described in paragraph (c) of
this subdivision, and is part of a unitary group that meets the owner-
ship test under section 11-654.3 of this subchapter, is doing business
in the city if the number of customers, locations, or customers and
locations, within the city of the members of the unitary group that have
at least ten customers, locations, or customers and locations, within
the city in the aggregate meets any of the thresholds set forth in para-
graph (c) of this subdivision.
(3) For purposes of this paragraph, any corporation described in para-
graph (c) of subdivision two of section 11-654.3 of this subchapter
shall not be considered.
(e) At the end of each year, the commissioner shall review the cumula-
tive percentage change in the consumer price index. The commissioner
shall adjust the receipt thresholds set forth in this subdivision if the
consumer price index has changed by ten percent or more since January
first, two thousand twenty-two, or since the date that the thresholds
were last adjusted under this subdivision. The thresholds shall be
adjusted to reflect the cumulative percentage change in the consumer
price index. The adjusted thresholds shall be rounded to the nearest one
thousand dollars. As used in this paragraph, "consumer price index"
means the consumer price index for all urban consumers (CPI-U) available
from the bureau of labor statistics of the United States department of
labor. Any adjustment shall apply to tax periods that begin after the
adjustment is made.
(f) If a partnership is doing business, employing capital, owning or
leasing property in the city, or maintaining an office in the city, or
deriving receipts from activity in the city, any corporation that is a
partner in such partnership shall be subject to tax under this subchap-
ter as described in the regulations of the commissioner of finance.
2. A foreign corporation shall not be deemed to be doing business,
employing capital, owning or leasing property, or maintaining an office
A. 10030 611
in the city, or deriving receipts from activity in the city, for the
purposes of this subchapter, by reason of:
(a) the maintenance of cash balances with banks or trust companies in
the city, or
(b) the ownership of shares of stock or securities kept in the city,
if kept in a safe deposit box, safe, vault or other receptacle rented
for the purpose, or if pledged as collateral security, or if deposited
with one or more banks or trust companies, or brokers who are members of
a recognized security exchange, in safekeeping or custody accounts, or
(c) the taking of any action by any such bank or trust company or
broker, which is incidental to the rendering of safekeeping or custodian
service to such corporation, or
(d) the maintenance of an office in the city by one or more officers
or directors of the corporation who are not employees of the corporation
if the corporation otherwise is not doing business in the city, and does
not employ capital or own or lease property in the city, or
(e) the keeping of books or records of a corporation in the city if
such books or records are not kept by employees of such corporation and
such corporation does not otherwise do business, employ capital, own or
lease property or maintain an office in the city, or
(f) any combination of such activities.
2-a. An alien corporation shall not be deemed to be doing business,
employing capital, owning or leasing property, or maintaining an office
in the city, or deriving receipts from activity in the city, for the
purposes of this subchapter, if its activities in the city are limited
solely to:
(a) investing or trading in stocks and securities for its own account
within the meaning of clause (ii) of subparagraph (A) of paragraph (2)
of subsection (b) of section eight hundred sixty-four of the internal
revenue code, or:
(b) investing or trading in commodities for its own account within the
meaning of clause (ii) of subparagraph (B) of paragraph (2) of
subsection (b) of section eight hundred sixty-four of the internal
revenue code, or
(c) any combination of activities described in paragraphs (a) and (b)
of this subdivision.
An alien corporation that under any provision of the internal revenue
code is not treated as a "domestic corporation" as defined in section
seven thousand seven hundred one of such code and has no effectively
connected income for the taxable year pursuant to clause three of the
opening paragraph of subdivision eight of section 11-652 of this
subchapter shall not be subject to tax under this subchapter for that
taxable year. For purposes of this subchapter, an alien corporation is a
corporation organized under the laws of a country, or any political
subdivision thereof, other than the United States, or organized under
the laws of a possession, territory or commonwealth of the United
States.
3. Any receiver, referee, trustee, assignee or other fiduciary, or any
officer or agent appointed by any court, who conducts the business of
any corporation, shall be subject to the tax imposed by this subchapter
in the same manner and to the same extent as if the business were
conducted by the agents or officers of such corporation. A dissolved
corporation which continues to conduct business shall also be subject to
the tax imposed by this subchapter.
4. (a) Corporations subject to tax under chapter eleven of this title,
any trust company organized under a law of this state all of the stock
A. 10030 612
of which is owned by not less than twenty savings banks organized under
a law of this state, housing companies organized and operating pursuant
to the provisions of article two of the private housing finance law,
housing development fund companies organized pursuant to the provisions
of article eleven of the private housing finance law, corporations
described in section three of the tax law, a corporation principally
engaged in the operation of marine vessels whose activities in the city
are limited exclusively to the use of property in interstate or foreign
commerce, provided, however, such a corporation will not be subject to
tax under this subchapter solely because it maintains an office in the
city, or employs capital in the city, in connection with such use of
property, a corporation principally engaged in the conduct of a ferry
business and operating between any of the boroughs of the city under a
lease granted by the city and a corporation principally engaged in the
conduct of an aviation, steamboat, ferry or navigation business, or two
or more of such businesses, all of the capital stock of which is owned
by a municipal corporation of this state, shall not be subject to tax
under this subchapter; provided, however, that any corporation, other
than (1) a utility corporation subject to the supervision of the state
department of public service, and (2) for taxable years beginning on or
after August first, two thousand two, a utility as defined in subdivi-
sion six of section 11-1101 of this title, which is subject to tax under
chapter eleven of this title as a vendor of utility services, shall be
subject to tax under this subchapter, but in computing the tax imposed
by this section pursuant to the provisions of clause (i) of subparagraph
one of paragraph (e) of subdivision one of section 11-654 of this
subchapter, business income allocated to the city pursuant to paragraph
(a) of subdivision three of such section shall be reduced by the
percentage which such corporation's gross operating income subject to
tax under chapter eleven of this title is of its gross operating income.
(b) The term "gross operating income", when used in paragraph (a) of
this subdivision, means receipts received in or by reason of any trans-
action had and consummated in the city, including cash, credits and
property of any kind or nature, whether or not such transaction is made
for profit, without any deduction therefrom on account of the cost of
the property sold, the cost of materials used, labor or other services,
delivery costs or any other costs whatsoever, interest or discount paid
or any other expenses whatsoever.
(c) If it shall appear to the commissioner of finance that the appli-
cation of the provisions of paragraph (a) of this subdivision, does not
fairly and equitably reflect the portion of the taxpayer's business
income allocable to the city which is attributable to its city activ-
ities which are not taxable under chapter eleven of this title, the
commissioner of finance may prescribe other means or methods of deter-
mining such portion, including the use of the books and records of the
taxpayer, if the commissioner of finance finds that such means or meth-
ods used in keeping them fairly and equitably reflect such portion.
5. Intentionally omitted.
6. Intentionally omitted.
7. For any taxable year of a real estate investment trust, as defined
in section eight hundred fifty-six of the internal revenue code, in
which such trust is subject to federal income taxation under section
eight hundred fifty-seven of such code, such trust shall be subject to a
tax computed under either clause (i) of subparagraph one of paragraph
(e) of subdivision one of section 11-654 of this subchapter, or clause
(iv), whichever is greater. In the case of such a real estate investment
A. 10030 613
trust, including a captive REIT as defined in section 11-601 of this
chapter, the term "entire net income" means "real estate investment
trust taxable income" as defined in paragraph two of subdivision (b) of
section eight hundred fifty-seven, as modified by section eight hundred
fifty-eight, of the internal revenue code plus the amount taxable under
paragraph three of subdivision (b) of section eight hundred fifty-seven
of such code, subject to the modifications required by subdivision eight
of section 11-652 of this subchapter including the modifications
required by paragraphs (d) and (e) of subdivision three of section
11-654 of this subchapter.
8. For any taxable year of a regulated investment company, as defined
in section eight hundred fifty-one of the internal revenue code, in
which such company is subject to federal income taxation under section
eight hundred fifty-two of such code, such company shall be subject to a
tax computed under either clause one or four of subparagraph (a) of
paragraph E of subdivision one of section 11-654 of this subchapter,
whichever is greater. In the case of such a regulated investment compa-
ny, including a captive RIC as defined in section 11-601 of this chap-
ter, the term "entire net income" used in subdivision one of this
section means "investment company taxable income" as defined in para-
graph two of subdivision (b) of section eight hundred fifty-two, as
modified by section eight hundred fifty-five, of the internal revenue
code plus the amount taxable under paragraph three of subdivision (b) of
section eight hundred fifty-two of such code subject to the modifica-
tions required by subdivision eight of section 11-652 of this subchap-
ter, including the modification required by paragraphs (d) and (e) of
subdivision three of section 11-654 of this subchapter.
9. An organization described in paragraph two or twenty-five of
subsection (c) of section five hundred one of the internal revenue code
shall be exempt from all taxes imposed by this subchapter.
§ 11-654 Computation of tax. 1. (a) Intentionally omitted.
(b) Intentionally omitted.
(c) Intentionally omitted.
(d) Intentionally omitted.
(e) The tax imposed by subdivision one of section 11-653 of this
subchapter shall be, in the case of each taxpayer:
(1) whichever of the following amounts is the greatest:
(i) an amount computed on its business income or the portion of such
business income allocated within the city as hereinafter provided,
subject to the application of paragraphs (j) and (k) of this subdivision
and any modification required by paragraphs (d) and (e) of subdivision
three of this section, at the rate of (1) nine per centum for financial
corporations, as defined in this clause, or (2) eight and eighty-five
one hundredths per centum for all other corporations. For purposes of
this clause, "financial corporation" means a corporation or, if the
corporation is included in a combined group, a combined group, that (A)
has total assets reflected on its balance sheet at the end of its taxa-
ble year in excess of one hundred billion dollars, computed under gener-
ally accepted accounting principles and (B)(I) allocates more than fifty
percent of the receipts included in the denominator of its receipts
fraction, determined under section 11-654.2 of this subchapter, pursuant
to subdivision five of section 11-654.2 of this subchapter for its taxa-
ble year, or (II) is itself or is included in a combined group in which
more than fifty percent of the total assets reflected on its balance
sheet at the end of its taxable year are held by one or more corpo-
rations that are classified as (a) registered under state law as a bank
A. 10030 614
holding company or registered under the Federal Bank Holding Company Act
of 1956 (12 U.S.C. § 1841, et seq., as amended), or registered as a
savings and loan holding company under the Federal National Housing Act
(12 U.S.C. 1701, as amended), (b) a national bank organized and existing
as a national bank association pursuant to the provisions of the
National Bank Act, 12 U.S.C. 21 et. seq., (c) a savings association or
federal savings bank as defined in the Federal Deposit Insurance Act, 12
U.S.C. § 1813(b)(1), (d) a bank, savings association, or thrift institu-
tion incorporated or organized under the laws of any state, (e) a corpo-
ration organized under the provisions of 12 U.S.C. §§ 611 to 631, (f) an
agency or branch or a foreign depository as defined in 12 U.S.C. § 3101,
(g) a registered securities or commodities broker or dealer registered
as such by the securities and exchange commission or the commodities
futures trading commission, which shall include an OTC derivatives deal-
er as defined under regulations of the securities and exchange commis-
sion at title 17, part 240, section 3b-12 of the code of federal regu-
lations (17 CFR 240.3b-12), or (h) any corporation whose voting stock is
more than fifty percent owned, directly or indirectly, by any person or
business entity described in subitems (a) through (g) of this item,
other than an insurance company taxable under article thirty-three of
the tax law; or
(ii) an amount computed by multiplying its total business capital, or
the portion thereof allocated within the city, as hereinafter provided,
(A) except as provided in subclauses (B) and (C) of this clause, by
fifteen one-hundredths per centum;
(B) in the case of a cooperative housing corporation as defined in the
internal revenue code, by four one-hundredths per centum;
(C) in the case of the portion of total business capital directly
attributable to a corporation that is or would be taxable under chapter
eleven of this title, except for a vendor of utility services that is
taxable under both chapter eleven of this title and this subchapter, or
a corporation that would have been taxable as an insurance corporation
under former part IV, title R, chapter forty-six of the administrative
code of the city of New York as in effect on June thirtieth, nineteen
hundred seventy-four, by seven and one-half one-hundredths per centum;
and
(D) subtracting ten thousand dollars from the sum of the amount of tax
computed pursuant to subclauses (A), (B) and (C) of this clause,
provided that if such amount of tax is less than zero it shall be deemed
to be zero; and
(E) provided that in no event shall the amount of tax computed pursu-
ant to subclause (D) of this clause on the taxpayer's total business
capital, or the portion thereof allocated within the city, exceed ten
million dollars, or
(iii) Intentionally omitted.
(iv) If New York city receipts are: Fixed dollar minimum
tax is:
Not more than $100,000 $25
More than $100,000 but not over $250,000 $75
More than $250,000 but not over $500,000 $175
More than $500,000 but not over $1,000,000 $500
More than $1,000,000 but not over $5,000,000 $1,500
More than $5,000,000 but not over $25,000,000 $3,500
More than $25,000,000 but not over $50,000,000 $5,000
More than $50,000,000 but not over $100,000,000 $10,000
A. 10030 615
More than $100,000,000 but not over $250,000,000 $20,000
More than $250,000,000 but not over $500,000,000 $50,000
More than $500,000,000 but not over $1,000,000,000 $100,000
Over $1,000,000,000 $200,000
For purposes of this clause, New York city receipts are the receipts
computed in accordance with section 11-654.2 of this subchapter for the
taxable year. If the taxable year is less than twelve months, the amount
prescribed by this clause shall be reduced by twenty-five percent if the
period for which the taxpayer is subject to tax is more than six months
but not more than nine months and by fifty percent if the period for
which the taxpayer is subject to tax is not more than six months. If the
taxable year is less than twelve months, the amount of New York city
receipts for purposes of this clause is determined by dividing the
amount of the receipts for the taxable year by the number of months in
the taxable year and multiplying the result by twelve.
(f) Intentionally omitted.
(g) Intentionally omitted.
(h) Intentionally omitted.
(i) Intentionally omitted.
(j) (1) If the amount of business income allocated within the city as
hereinafter provided is less than one million dollars, the amount
computed in clause (i) of subparagraph one of paragraph (e) of this
subdivision shall be at the rate of six and five-tenths per centum of
the amount of business income allocated within the city as hereinafter
provided, subject to any modification required by paragraphs (d) and (e)
of subdivision three of this section;
(2) Subject to subparagraph three of this paragraph, if the amount of
business income allocated within the city as hereinafter provided is one
million dollars or greater but less than one million five hundred thou-
sand dollars, the amount computed in clause (i) of subparagraph one of
paragraph (e) of this subdivision shall be at the rate of (i) six and
five-tenths per centum, plus (ii) two and thirty-five one-hundredths per
centum multiplied by a fraction the numerator of which is allocated
business income less one million dollars and the denominator of which is
five hundred thousand dollars, of the amount of business income allo-
cated within the city as hereinafter provided, subject to any modifica-
tion required by paragraphs (d) and (e) of subdivision three of this
section;
(3) Provided, however, notwithstanding anything to the contrary, if
the amount of business income before allocation is two million dollars
or greater but less than three million dollars, the rate of tax provided
for in this paragraph shall not be less than (i) six and five-tenths per
centum, plus (ii) two and thirty-five one-hundredths per centum multi-
plied by a fraction the numerator of which is business income before
allocation less two million dollars and the denominator of which is one
million dollars, and provided, however, notwithstanding anything to the
contrary, if the amount of business income before allocation is three
million dollars or greater, the rate of tax shall be eight and eighty-
five one-hundredths percentum or, in the case of a financial corpo-
ration, as defined in clause (i) of subparagraph one of paragraph (e) of
subdivision one of section 11-654, if the amount of business income
before allocation is three million dollars or greater the rate of tax
shall be nine per centum.
(k)(1) For qualified New York manufacturing corporations as defined in
subparagraph four of this paragraph, if the amount of business income
A. 10030 616
allocated within the city as hereinafter provided is less than ten
million dollars, the amount computed in clause (i) of subparagraph one
of paragraph (e) of this subdivision shall be at the rate of four and
four hundred twenty-five one thousandths per centum, of its business
income allocated within the city as hereinafter provided, subject to any
modification required by paragraphs (d) and (e) of subdivision three of
this section;
(2) Subject to subparagraph three of this paragraph for qualified New
York manufacturing corporations as defined in subparagraph four of this
paragraph, if the amount of business income allocated within the city as
hereinafter provided is ten million dollars or greater but less than
twenty million dollars, the amount computed in clause (i) of subpara-
graph one of paragraph (e) of this subdivision shall be at the rate of
(i) four and four hundred twenty-five one-thousandths per centum, plus
(ii) four and four hundred twenty-five one-thousandths per centum multi-
plied by a fraction the numerator of which is allocated business income
less ten million dollars and the denominator of which is ten million
dollars, of its business income or the portion of such business income
allocated within the city as hereinafter provided, subject to any
modification required by paragraphs (d) and (e) of subdivision three of
this section;
(3) Notwithstanding anything to the contrary, if the amount of busi-
ness income before allocation is twenty million dollars or greater but
less than forty million dollars, the rate of tax provided for in this
paragraph shall not be less than (i) four and four hundred twenty-five
one-thousandths per centum, plus (ii) four and four hundred twenty-five
one-thousandths per centum multiplied by a fraction the numerator of
which is business income before allocation less twenty million dollars
and the denominator of which is twenty million dollars, and provided,
however, notwithstanding anything to the contrary, if the amount of
business income before allocation is forty million dollars or greater,
the rate of tax shall be eight and eighty-five one-hundredths per
centum.
(4)(i) As used in this subparagraph, the term "manufacturing corpo-
ration" means a corporation principally engaged in the manufacturing and
sale thereof of tangible personal property; and the term "manufacturing"
includes the process, including the assembly process (A) of working raw
materials into wares suitable for use or (B) which gives new shapes, new
qualities or new combinations to matter which already has gone through
some artificial process, by the use of machinery, tools, appliances and
other similar equipment. Moreover, in the case of a combined report, a
combined group shall be considered a "manufacturing corporation" for
purposes of this subparagraph only if the combined group during the
taxable year is principally engaged in the activities set forth in this
paragraph, or any combination thereof. A taxpayer or, in the case of a
combined report, a combined group, shall be "principally engaged" in
activities described in this subparagraph if, during the taxable year,
more than fifty percent of the gross receipts of the taxpayer or
combined group, respectively, are derived from receipts from the sale of
goods produced by such activities. In computing a combined group's gross
receipts, intercorporate receipts shall be eliminated.
(ii) A "qualified New York manufacturing corporation" is a manufactur-
ing corporation that has property in the state that is described in
subparagraph five of this paragraph and either (A) the adjusted basis of
such property for New York state tax purposes at the close of the taxa-
A. 10030 617
ble year is at least one million dollars or (B) more than fifty percent
of its real and personal property is located in the state.
(5) For purposes of subclause (A) of clause (ii) of subparagraph four
of this paragraph, property includes tangible personal property and
other tangible property, including buildings and structural components
of buildings, which are: depreciable pursuant to section one hundred
sixty-seven of the internal revenue code, have a useful life of four
years or more, are acquired by purchase as defined in subsection (d) of
section one hundred seventy-nine of the internal revenue code, have a
situs in the state and are principally used by the taxpayer in the
production of goods by manufacturing. Property used in the production of
goods shall include machinery, equipment or other tangible property
which is principally used in the repair and service of other machinery,
equipment or other tangible property used principally in the production
of goods and shall include all facilities used in the production opera-
tion, including storage of material to be used in production and of the
products that are produced.
2. The amount of investment capital and business capital shall be
determined by taking the average value of the gross assets included
therein, less liabilities deductible therefrom pursuant to the
provisions of subdivisions four and six of section 11-652 of this
subchapter, and, if the period covered by the report is other than a
period of twelve calendar months, by multiplying such value by the
number of calendar months or major parts thereof included in such peri-
od, and dividing the product thus obtained by twelve. For purposes of
this subdivision, real property and marketable securities shall be
valued at fair market value and the value of personal property other
than marketable securities shall be the value thereof shown on the books
and records of the taxpayer in accordance with generally accepted
accounting principles.
3. The portion of the business income of a taxpayer to be allocated to
the city shall be determined as follows:
(a) multiply its business income by a business allocation percentage
to be determined by:
(1) ascertaining the percentage which the average value of the taxpay-
er's real and tangible personal property, whether owned or rented to it,
within the city during the period covered by its report bears to the
average value of all the taxpayer's real and tangible personal property,
whether owned or rented to it, wherever situated during such period. For
the purpose of this subparagraph, the term "value of the taxpayer's real
and tangible personal property" shall mean the adjusted bases of such
properties for federal income tax purposes, except that in the case of
rented property such value shall mean the product of (i) eight and (ii)
the gross rents payable for the rental of such property during the taxa-
ble year; provided, however, that the taxpayer may make a one-time,
revocable election, pursuant to regulations promulgated by the commis-
sioner of finance to use fair market value as the value of all of its
real and tangible personal property, provided that such election is made
on or before the due date for filing a report under section 11-655 of
this subchapter for the taxpayer's first taxable year commencing on or
after January first, two thousand fifteen and provided that such
election shall not apply to any taxable year with respect to which the
taxpayer is included on a combined report unless each of the taxpayers
included on such report has made such an election which remains in
effect for such year or to any taxpayer that was subject to tax under
subchapter two of this chapter and did not have an election in effect
A. 10030 618
under subparagraph one of paragraph (a) of subdivision three of section
11-604 of this chapter on December thirty-first, two thousand fourteen;
(2) ascertaining the percentage determined under section 11-654.2 of
this subchapter;
(3) ascertaining the percentage of the total wages, salaries and other
personal service compensation, similarly computed, during such period of
employees within the city, except general executive officers, to the
total wages, salaries and other personal service compensation, similarly
computed, during such period of all the taxpayer's employees within and
without the city, except general executive officers; and
(4) adding together the percentages so determined and dividing the
result by the number of percentages.
(5) Intentionally omitted.
(6) Intentionally omitted.
(7) Intentionally omitted.
(8) Intentionally omitted.
(9) Intentionally omitted.
(10) Notwithstanding subparagraphs one through four of this paragraph,
the business allocation percentage, to the extent that it is computed by
reference to the percentages determined under subparagraphs one, two and
three of this paragraph, shall be computed in the manner set forth in
this subparagraph.
(i) Intentionally omitted.
(ii) Intentionally omitted.
(iii) Intentionally omitted.
(iv) Intentionally omitted.
(v) Intentionally omitted.
(vi) Intentionally omitted.
(vii) For taxable years beginning in two thousand fifteen, the busi-
ness allocation percentage shall be determined by adding together the
following percentages:
(A) the product of ten percent and the percentage determined under
subparagraph one of this paragraph;
(B) the product of eighty percent and the percentage determined under
subparagraph two of this paragraph; and
(C) the product of ten percent and the percentage determined under
subparagraph three of this paragraph.
(viii) For taxable years beginning in two thousand sixteen, the busi-
ness allocation percentage shall be determined by adding together the
following percentages:
(A) the product of six and one-half percent and the percentage deter-
mined under subparagraph one of this paragraph;
(B) the product of eighty-seven percent and the percentage determined
under subparagraph two of this paragraph; and
(C) the product of six and one-half percent and the percentage deter-
mined under subparagraph three of this paragraph.
(ix) For taxable years beginning in two thousand seventeen, the busi-
ness allocation percentage shall be determined by adding together the
following percentages:
(A) the product of three and one-half percent and the percentage
determined under subparagraph one of this paragraph;
(B) the product of ninety-three percent and the percentage determined
under subparagraph two of this paragraph; and
(C) the product of three and one-half percent and the percentage
determined under subparagraph three of this paragraph.
A. 10030 619
(x) For taxable years beginning after two thousand seventeen, the
business allocation percentage shall be the percentage determined under
subparagraph two of this paragraph.
(xi) The commissioner of finance shall promulgate rules necessary to
implement the provisions of this subparagraph under such circumstances
where any of the percentages to be determined under subparagraph one,
two or three of this paragraph cannot be determined because the taxpayer
has no property, receipts or wages within or without the city.
(xii) Notwithstanding the provisions of clauses (viii), (ix), and (x)
of this subparagraph, for taxable years beginning on or after January
first, two thousand eighteen, a taxpayer that has fifty million dollars
or less of receipts allocated to the city as determined under section
11-654.2 of this subchapter, or, if the taxpayer is included in a
combined group, a combined group that has fifty million dollars or less
of receipts allocated to the city as determined under section 11-654.2
of this subchapter, may make a one-time election to determine its busi-
ness allocation percentage by adding together the following percentages:
(A) the product of three and one-half percent and the percentage
determined under subparagraph one of this paragraph;
(B) the product of ninety-three percent and the percentage determined
under subparagraph two of this paragraph; and
(C) the product of three and one-half percent and the percentage
determined under subparagraph three of this paragraph.
The election provided for in this clause must be made on an original
or amended report filed pursuant to section 11-655 of this subchapter
for the taxpayer's or, if the taxpayer is included in a combined group,
the combined group's, first taxable year commencing on or after January
first, two thousand eighteen and shall remain in effect until revoked by
the taxpayer, or if the taxpayer is included in a combined group, the
combined group. An election shall be revoked under this clause on an
original or amended report filed pursuant to section 11-655 of this
subchapter for the taxpayer's, or if the taxpayer is included in a
combined group, the combined group's, first taxable year with respect to
which such revocation is to be effective. If the taxpayer is a member of
a combined group, an election or revocation by the taxpayer under this
clause shall apply to all members of the combined group.
(11) A foreign air carrier described in the first sentence of subpara-
graph one of paragraph (c-1) of subdivision eight of section 11-652 of
this subchapter shall determine its business allocation percentage
pursuant to subparagraphs one through four of this paragraph, as modi-
fied by subparagraph ten of this paragraph, except that the numerators
and denominators involved in such computation shall exclude property to
the extent employed in generating income excluded from entire net income
for the taxable year pursuant to paragraph (c-1) of subdivision eight of
section 11-652 of this subchapter, exclude such receipts as are excluded
from entire net income for the taxable year pursuant to paragraph (c-1)
of subdivision eight of section 11-652 of this subchapter, and exclude
wages, salaries or other personal service compensation which are direct-
ly attributable to the generation of income excluded from entire net
income for the taxable year pursuant to paragraph (c-1) of subdivision
eight of section 11-652 of this subchapter.
(b) Intentionally omitted.
(c) Intentionally omitted.
(d) In any taxable year when property is sold or otherwise disposed
of, with respect to which a deduction has been allowed pursuant to
subparagraph one or two of paragraph (d) of subdivision three of section
A. 10030 620
11-604 of this chapter or subdivision (k) of section 11-641 of this
chapter in any period in which the taxpayer was subject to tax under
subchapter two of this chapter, the gain or loss thereon entering into
the computation of federal taxable income shall be disregarded in
computing entire net income, and there shall be added to or subtracted
from the portion of entire net income allocated within the city the gain
or loss upon such sale or other disposition. In computing such gain or
loss the basis of the property sold or disposed of shall be adjusted to
reflect the deduction allowed with respect to such property pursuant to
subparagraph one or two of paragraph (d) of subdivision three of section
11-604 of this chapter. Provided, however, that no loss shall be recog-
nized for the purposes of this subparagraph with respect to a sale or
other disposition of property to a person whose acquisition thereof is
not a purchase as defined in subsection (d) of section one hundred
seventy-nine of the internal revenue code.
(e) In any taxable year when property is sold or otherwise disposed
of, with respect to which a deduction has been allowed pursuant to
subparagraph one or two of paragraph (e) of subdivision three of section
11-604 of this chapter in any period the taxpayer was subject to tax
under subchapter two of this chapter, the gain or loss thereon entering
into the computation of federal taxable income shall be disregarded in
computing entire net income, and there shall be added to or subtracted
from the portion of entire net income allocated within the city the gain
or loss upon such sale or other disposition. In computing such gain or
loss the basis of the property sold or disposed of shall be adjusted to
reflect the deduction allowed with respect to such property pursuant to
subparagraph one or two of paragraph (e) of subdivision three of section
11-604 of this chapter. Provided, however, that no loss shall be recog-
nized for the purposes of this subparagraph with respect to a sale or
other disposition of property to a person whose acquisition thereof is
not a purchase as defined in subsection (d) of section one hundred
seventy-nine of the internal revenue code.
4. The portion of the business capital of a taxpayer to be allocated
within the city shall be determined by multiplying the amount thereof by
the business allocation percentage determined as hereinabove provided.
4-a. A corporation that is a partner in a partnership shall compute
tax under this subchapter using any method required or permitted in
regulations of the commissioner of finance.
5. Intentionally omitted.
6. Intentionally omitted.
7. Intentionally omitted.
8. Intentionally omitted.
9. If it shall appear to the commissioner of finance that any business
allocation percentage determined as hereinabove provided does not prop-
erly reflect the activity, business, income or capital of a taxpayer
within the city, the commissioner of finance shall be authorized in his
or her discretion to adjust it, or the taxpayer may request that the
commissioner of finance adjust it, by (a) excluding one or more of the
factors therein, (b) including one or more other factors, such as
expenses, purchases, contract values, minus subcontract values, (c)
excluding one or more assets in computing such allocation percentage,
provided the income therefrom, is also excluded in determining entire
net income, or (d) any other similar or different method calculated to
effect a fair and proper allocation of the income and capital reasonably
attributable to the city. The party seeking the adjustment shall bear
the burden of proof to demonstrate that the business allocation percent-
A. 10030 621
age determined pursuant to this section does not result in a proper
reflection of the taxpayer's income or capital within the city and that
the proposed adjustment is appropriate. The commissioner of finance from
time to time shall publish all rulings of general public interest with
respect to any application of the provisions of this subdivision.
10. Intentionally omitted.
11. Intentionally omitted.
12. Intentionally omitted.
13. (a) In addition to any other credit allowed by this section, a
taxpayer shall be allowed a credit against the tax imposed by this
subchapter to be credited or refunded without interest, in the manner
hereinafter provided in this section.
(1)(i) Where a taxpayer shall have relocated to the city from a
location outside the state, and by such relocation shall have created a
minimum of one hundred industrial or commercial employment opportu-
nities; and where such taxpayer shall have entered into a written lease
for the relocation premises, the terms of which lease provide for
increased additional payments to the landlord which are based solely and
directly upon any increase or addition in real estate taxes imposed on
the leased premises, the taxpayer upon approval and certification by the
industrial and commercial incentive board as hereinafter provided shall
be entitled to a credit against the tax imposed by this subchapter. The
amount of such credit shall be an amount equal to the annual increased
payments actually made by the taxpayer to the landlord which are solely
and directly attributable to an increase or addition to the real estate
tax imposed upon the leased premises. Such credit shall be allowed only
to the extent that the taxpayer has not otherwise claimed said amount as
a deduction against the tax imposed by this subchapter.
(ii) The industrial and commercial incentive board in approving and
certifying to the qualifications of the taxpayer to receive such tax
credit shall first determine that the applicant has met the requirements
of this section, and further, that the granting of the tax credit to the
applicant is in the "public interest". In determining that the granting
of the tax credit is in the public interest, the board shall make affir-
mative findings that: the granting of the tax credit to the applicant
will not effect an undue hardship on similar taxpayers already located
within the city; the existence of this tax incentive has been instru-
mental in bringing about the relocation of the applicant to the city;
and the granting of the tax credit will foster the economic recovery and
economic development of the city.
(iii) The tax credit, if approved and certified by the industrial and
commercial incentive board, must be utilized annually by the taxpayer
for the length of the term of the lease or for a period not to exceed
ten years from the date of relocation whichever period is shorter.
(2) When used in this subdivision:
(i) "Employment opportunity" means the creation of a full time posi-
tion of gainful employment for an industrial or commercial employee and
the actual hiring of such employee for the said position.
(ii) "Industrial employee" means one engaged in the manufacture or
assembling of tangible goods or the processing of raw materials.
(iii) "Commercial employee" means one engaged in the buying, selling
or otherwise providing of goods or services other than on a retail
basis.
(iv) "Retail" means the selling or otherwise disposing or furnishing
of tangible goods or services directly to the ultimate user or consumer.
A. 10030 622
(v) "Full time position" means the hiring of an industrial or commer-
cial employee in a position of gainful employment where the number of
hours worked by such employees is not less than thirty hours during any
given work week.
(vi) "Industrial and commercial incentive board" means the board
created pursuant to part three of subchapter two of chapter two of this
title.
(b) The credit allowed under this subdivision for any taxable year
shall be deemed to be an overpayment of tax by the taxpayer to be cred-
ited or refunded, without interest, in accordance with the provisions of
section 11-677 of this chapter.
14. (a) In addition to any other credit allowed by this section, a
taxpayer shall be allowed a credit against the tax imposed by this
subchapter to be credited or refunded without interest, in the manner
hereinafter provided in this section. The amount of such credit shall
be:
(1) A maximum of three hundred dollars for each commercial employment
opportunity and a maximum of five hundred dollars for each industrial
employment opportunity relocated to the city from an area outside the
state. Such credit shall be allowed to a taxpayer who relocates a mini-
mum of ten employment opportunities. The credit shall be allowed against
employment opportunity relocation costs incurred by the taxpayer. Such
credit shall be allowed only to the extent that the taxpayer has not
claimed a deduction for allowable employment opportunity relocation
costs. The credit allowed hereunder may be taken by the taxpayer in
whole or in part in the year in which the employment opportunity is
relocated by such taxpayer or either of the two years succeeding such
event, provided, however, no credit shall be allowed under this subdivi-
sion to a taxpayer for industrial employment opportunities relocated to
premises (i) that are within an industrial business zone established
pursuant to section 22-626 of the code of the preceding municipality and
(ii) for which a binding contract to purchase or lease was first entered
into by the taxpayer on or after July first, two thousand five.
The commissioner of finance is empowered to promulgate rules and regu-
lations and to prescribe the form of application to be used by a taxpay-
er seeking the such credit.
(2) When used in this subdivision:
(i) "Employment opportunity" means the creation of a full time posi-
tion of gainful employment for an industrial or commercial employee and
the actual hiring of such employee for the said position.
(ii) "Industrial employee" means one engaged in the manufacture or
assembling of tangible goods or the processing of raw materials.
(iii) "Commercial employee" means one engaged in the buying, selling
or otherwise providing of goods or services other than on a retail
basis.
(iv) "Retail" means the selling or otherwise disposing of tangible
goods directly to the ultimate user or consumer.
(v) "Full time position" means the hiring of an industrial or commer-
cial employee in a position of gainful employment where the number of
hours worked by such employee is not less than thirty hours during any
given work week.
(vi) "Employment opportunity relocation costs" means the costs
incurred by the taxpayer in moving furniture, files, papers and office
equipment into the city from a location outside the state; the costs
incurred by the taxpayer in the moving and installation of machinery and
equipment into the city from a location outside the state; the costs of
A. 10030 623
installation of telephones and other communications equipment required
as a result of the relocation to the city from a location outside the
state; the cost incurred in the purchase of office furniture and
fixtures required as a result of the relocation to the city from a
location outside the state; and the cost of renovation of the premises
to be occupied as a result of the relocation; provided, however, that
such renovation costs shall be allowable only to the extent that they do
not exceed seventy-five cents per square foot of the total area utilized
by the taxpayer in the occupied premises.
(b) The credit allowed under this section for any taxable year shall
be deemed to be an overpayment of tax by the taxpayer to be credited or
refunded without interest in accordance with the provisions of section
11-677 of this chapter.
(c) Notwithstanding any other provision of this subdivision to the
contrary, in the case of a taxpayer that has received, in a taxable year
beginning before January first, two thousand fifteen, the credit set
forth in subdivision fourteen of section 11-604 of this chapter for an
eligible employment relocation, a credit shall be allowed to the taxpay-
er under this subdivision for any tax year beginning on or after January
first, two thousand fifteen, in the same amount and to the same extent
that a credit, or the unused portion thereof, would have been allowed
under subdivision fourteen of section 11-604 of this chapter, as in
effect on December thirty-first, two thousand fourteen, if such subdivi-
sion continued to apply to the taxpayer for such taxable year.
15. Intentionally omitted.
16. Intentionally omitted.
17. (a) In addition to any other credit allowed by this section, a
taxpayer that has obtained the certifications required by chapter six-B
of title twenty-two of the code of the preceding municipality shall be
allowed a credit against the tax imposed by this subchapter. The amount
of the credit shall be the amount determined by multiplying five hundred
dollars or, in the case of a taxpayer that has obtained pursuant to
chapter six-B of such title twenty-two a certification of eligibility
dated on or after July first, nineteen hundred ninety-five, one thousand
dollars or, in the case of an eligible business that has obtained pursu-
ant to chapter six-B of such title twenty-two a certification of eligi-
bility dated on or after July first, two thousand, for a relocation to
eligible premises located within a revitalization area defined in subdi-
vision (n) of section 22-621 of the code of the preceding municipality,
three thousand dollars, by the number of eligible aggregate employment
shares maintained by the taxpayer during the taxable year with respect
to particular premises to which the taxpayer has relocated; provided,
however, with respect to a relocation for which no application for a
certificate of eligibility is submitted prior to July first, two thou-
sand three, to eligible premises that are not within a revitalization
area, if the date of such relocation as determined pursuant to subdivi-
sion (j) of section 22-621 of the code of the preceding municipality is
before July first, nineteen hundred ninety-five, the amount to be multi-
plied by the number of eligible aggregate employment shares shall be
five hundred dollars, and with respect to a relocation for which no
application for a certificate of eligibility is submitted prior to July
first, two thousand three, to eligible premises that are within a revi-
talization area, if the date of such relocation as determined pursuant
to subdivision (j) of such section is before July first, nineteen
hundred ninety-five, the amount to be multiplied by the number of eligi-
ble aggregate employment shares shall be five hundred dollars, and if
A. 10030 624
the date of such relocation as determined pursuant to subdivision (j) of
such section is on or after July first, nineteen hundred ninety-five,
and before July first, two thousand, one thousand dollars; provided,
however, that no credit shall be allowed for the relocation of any
retail activity or hotel services; provided, further, that no credit
shall be allowed under this subdivision to any taxpayer that has elected
pursuant to subdivision (d) of section 22-622 of the code of the preced-
ing municipality to take such credit against a gross receipts tax
imposed by chapter eleven of this title; and provided that in the case
of an eligible business that has obtained pursuant to chapter six-B of
such title twenty-two certifications of eligibility for more than one
relocation, the portion of the total amount of eligible aggregate
employment shares to be multiplied by the dollar amount specified in
this subdivision for each such certification of a relocation shall be
the number of total attributed eligible aggregate employment shares
determined with respect to such relocation pursuant to subdivision (o)
of section 22-621 of the code of the preceding municipality. For
purposes of this subdivision, the terms "eligible aggregate employment
shares," "relocate," "retail activity" and "hotel services" shall have
the meanings ascribed by section 22-621 of the code of the preceding
municipality.
(b) The credit allowed under this subdivision with respect to eligible
aggregate employment shares maintained with respect to particular prem-
ises to which the taxpayer has relocated shall be allowed for the first
taxable year during which such eligible aggregate employment shares are
maintained with respect to such premises and for any of the twelve
succeeding taxable years during which eligible aggregate employment
shares are maintained with respect to such premises; provided that the
credit allowed for the twelfth succeeding taxable year shall be calcu-
lated by multiplying the number of eligible aggregate employment shares
maintained with respect to such premises in the twelfth succeeding taxa-
ble year by the lesser of one and a fraction the numerator of which is
such number of days in the taxable year of relocation less the number of
days the eligible business maintained employment shares in the eligible
premises in the taxable year of relocation and the denominator of which
is the number of days in such twelfth succeeding taxable year during
which such eligible aggregate employment shares are maintained with
respect to such premises. Except as provided in paragraph (d) of this
subdivision, if the amount of the credit allowable under this subdivi-
sion for any taxable year exceeds the tax imposed for such year, the
excess may be carried over, in order, to the five immediately succeeding
taxable years and, to the extent not previously deductible, may be
deducted from the taxpayer's tax for such years.
(c) The credit allowable under this subdivision shall be deducted
after the credit allowed by subdivision eighteen of this section, but
prior to the deduction of any other credit allowed by this section.
(d) In the case of a taxpayer that has obtained a certification of
eligibility pursuant to chapter six-B of title twenty-two of the code of
the preceding municipality dated on or after July first, two thousand
for a relocation to eligible premises located within the revitalization
area defined in subdivision (n) of section 22-621 of the code of the
preceding municipality, the credits allowed under this subdivision, or
in the case of a taxpayer that has relocated more than once, the portion
of such credits attributed to such certification of eligibility pursuant
to paragraph (a) of this subdivision, against the tax imposed by this
chapter for the taxable year of such relocation and for the four taxable
A. 10030 625
years immediately succeeding the taxable year of such relocation, shall
be deemed to be overpayments of tax by the taxpayer to be credited or
refunded, without interest, in accordance with the provisions of section
11-677 of this chapter. For such taxable years, such credits or portions
thereof may not be carried over to any succeeding taxable year;
provided, however, that this paragraph shall not apply to any relocation
for which an application for a certification of eligibility was not
submitted prior to July first, two thousand three, unless the date of
such relocation is on or after July first, two thousand.
(e) Notwithstanding any other provision of this subdivision to the
contrary, in the case of a taxpayer that has obtained, pursuant to chap-
ter six-B of title twenty-two of the code of the preceding municipality,
a certification of eligibility and has received, in a taxable year
beginning before January first, two thousand fifteen, the credit set
forth in subdivision seventeen of section 11-604 of this chapter or
section 11-643.7 of this chapter for the relocation of an eligible busi-
ness, a credit shall be allowed under this subdivision to the taxpayer
for any taxable year beginning on or after January first, two thousand
fifteen in the same amount and to the same extent that a credit would
have been allowed under subdivision seventeen of section 11-604 of this
chapter or section 11-643.7 of this chapter, as in effect on December
thirty-first, two thousand fourteen, if such subdivision continued to
apply to the taxpayer for such taxable year.
17-a. Intentionally omitted.
17-b. (a) In addition to any other credit allowed by this section, an
eligible business that first enters into a binding contract on or after
July first, two thousand five to purchase or lease eligible premises to
which it relocates shall be allowed a one-time credit against the tax
imposed by this subchapter to be credited or refunded in the manner
hereinafter provided in this subdivision. The amount of such credit
shall be one thousand dollars per full-time employee; provided, however,
that the amount of such credit shall not exceed the lesser of actual
relocation costs or one hundred thousand dollars.
(b) When used in this subdivision, the following terms shall have the
following meanings:
(1) "Eligible business" means any business subject to tax under this
subchapter that (i) has been conducting substantial business operations
and engaging primarily in industrial and manufacturing activities at one
or more locations within the city of New York or outside the state of
New York continuously during the twenty-four consecutive full months
immediately preceding relocation, (ii) has leased the premises from
which it relocates continuously during the twenty-four consecutive full
months immediately preceding relocation, (iii) first enters into a bind-
ing contract on or after July first, two thousand five to purchase or
lease eligible premises to which such business will relocate, and (iv)
will be engaged primarily in industrial and manufacturing activities at
such eligible premises.
(2) "Eligible premises" means premises located entirely within an
industrial business zone. For any eligible business, an industrial busi-
ness zone tax credit shall not be granted with respect to more than one
eligible premises.
(3) "Full-time employee" means (i) one person gainfully employed in an
eligible premises by an eligible business where the number of hours
required to be worked by such person is not less than thirty-five hours
per week; or (ii) two persons gainfully employed in an eligible premises
by an eligible business where the number of hours required to be worked
A. 10030 626
by each such person is more than fifteen hours per week but less than
thirty-five hours per week.
(4) "Industrial business zone" means an area within the city of New
York established pursuant to section 22-626 of the code of the preceding
municipality.
(5) "Industrial business zone tax credit" means a credit, as provided
for in this subdivision, against a tax imposed under this subchapter.
(6) "Industrial and manufacturing activities" means activities involv-
ing the assembly of goods to create a different article, or the process-
ing, fabrication, or packaging of goods. Industrial and manufacturing
activities shall not include waste management or utility services.
(7) "Relocation" means the physical relocation of furniture, fixtures,
equipment, machinery and supplies directly to an eligible premises, from
one or more locations of an eligible business, including at least one
location at which such business conducts substantial business operations
and engages primarily in industrial and manufacturing activities. For
purposes of this subdivision, the date of relocation shall be (i) the
date of the completion of the relocation to the eligible premises or
(ii) ninety days from the commencement of the relocation to the eligible
premises, whichever is earlier.
(8) "Relocation costs" means costs incurred in the relocation of such
furniture, fixtures, equipment, machinery and supplies, including, but
not limited to, the cost of dismantling and reassembling equipment and
the cost of floor preparation necessary for the reassembly of the equip-
ment. Relocation costs shall include only such costs that are incurred
during the ninety-day period immediately following the commencement of
the relocation to an eligible premises. Relocation costs shall not
include costs for structural or capital improvements or items purchased
in connection with the relocation.
(c) The credit allowed under this subdivision for any taxable year
shall be deemed to be an overpayment of tax by the taxpayer to be cred-
ited or refunded without interest, in accordance with the provisions of
section 11-677 of this chapter.
(d) The number of full-time employees for the purposes of calculating
an industrial business tax credit shall be the average number of full-
time employees, calculated on a weekly basis, employed in the eligible
premises by the eligible business in the fifty-two week period imme-
diately following the earlier of (1) the date of the completion of the
relocation to eligible premises or (2) ninety days from the commencement
of the relocation to the eligible premises.
(e) The credit allowed under this subdivision must be taken by the
taxpayer in the taxable year in which such twelve month period selected
by the taxpayer ends.
(f) For the purposes of calculating entire net income in the taxable
year that an industrial business tax credit is allowed, a taxpayer must
add back the amount of the credit allowed under this subdivision, to the
extent of any relocation costs deducted in the current taxable year or a
prior taxable year in calculating federal taxable income.
(g) The credit allowed under this subdivision shall not be granted for
an eligible business for more than one relocation, provided, however, an
industrial business tax credit shall not be granted if the eligible
business receives benefits pursuant to chapter six-B or six-C of title
twenty-two of the code of the preceding municipality, through a grant
program administered by the business relocation assistance corporation,
or through the New York city printers relocation fund grant.
A. 10030 627
(h) The commissioner of finance is authorized to promulgate rules and
regulations and to prescribe forms necessary to effectuate the purposes
of this subdivision.
18. (a) If a corporation is a partner in an unincorporated business
taxable under chapter five of this title, and is required to include in
entire net income its distributive share of income, gain, loss and
deductions of, or guaranteed payments from, such unincorporated busi-
ness, such corporation shall be allowed a credit against the tax imposed
by this subchapter equal to the lesser of the amounts determined in
subparagraphs one and two of this paragraph:
(1) The amount determined in this subparagraph is the product of (i)
the sum of (A) the tax imposed by chapter five of this title on the
unincorporated business for its taxable year ending within or with the
taxable year of the corporation and paid by the unincorporated business
and (B) the amount of any credit or credits taken by the unincorporated
business under section 11-503 of this title, except the credit allowed
by subdivision (b) of section 11-503 of this title, for its taxable year
ending within or with the taxable year of the corporation, to the extent
that such credits do not reduce such unincorporated business's tax below
zero, and (ii) a fraction, the numerator of which is the net total of
the corporation's distributive share of income, gain, loss and
deductions of, and guaranteed payments from, the unincorporated business
for such taxable year, and the denominator of which is the sum, for such
taxable year, of the net total distributive shares of income, gain, loss
and deductions of, and guaranteed payments to, all partners in the unin-
corporated business for whom or which such net total, as separately
determined for each partner, is greater than zero.
(2) The amount determined in this subparagraph is the product of (i)
the excess of (A) the tax computed under clause (i) of subparagraph one
of paragraph (e) of subdivision one of this section, without allowance
of any credits allowed by this section, over (B) the tax so computed,
determined as if the corporation had no such distributive share or guar-
anteed payments with respect to the unincorporated business, and (ii) a
fraction, the numerator of which is four and the denominator of which is
eight and eighty-five one-hundredths, except that in the case of a
financial corporation as defined in clause (i) of subparagraph one of
paragraph (e) of subdivision one of this section, such denominator is
nine, and in the case of a taxpayer that is subject to paragraph (j) or
(k) of subdivision one of this section, such denominator shall be the
rate of tax as determined by such paragraph (j) or (k) for the taxable
year; provided that the amounts computed in subclauses (A) and (B) of
clause (i) of this subparagraph shall be computed with the following
modifications:
(A) such amounts shall be computed without taking into account any
carryforward or carryback by the partner of a net operating loss or a
prior net operation loss conversion subtraction;
(B) if, prior to taking into account any distributive share or guaran-
teed payments from any unincorporated business or any net operating loss
carryforward or carryback, the entire net income of the partner is less
than zero, such entire net income shall be treated as zero; and
(C) if such partner's net total distributive share of income, gain,
loss and deductions of, and guaranteed payments from, any unincorporated
business is less than zero, such net total shall be treated as zero. The
amount determined in this subparagraph shall not be less than zero.
(b) (1) Notwithstanding anything to the contrary in paragraph (a) of
this subdivision, in the case of a corporation that, before the applica-
A. 10030 628
tion of this subdivision or any other credit allowed by this section, is
liable for the tax on business income under clause (i) of subparagraph
one of paragraph (e) of subdivision one of this section, the credit or
the sum of the credits that may be taken by such corporation for a taxa-
ble year under this subdivision with respect to an unincorporated busi-
ness or unincorporated businesses in which it is a partner shall not
exceed the tax so computed, without allowance of any credits allowed by
this section, multiplied by a fraction the numerator of which is four
and the denominator of which is eight and eighty-five one-hundredths,
except that in the case of a financial corporation as defined in clause
(i) of subparagraph one of paragraph (e) of subdivision one of this
section, such denominator is nine, and in the case of a taxpayer that is
subject to paragraph (j) or (k) of subdivision one of this section, such
denominator shall be the rate of tax as determined by such paragraph (j)
or (k) for the taxable year. If the credit allowed under this subdivi-
sion or the sum of such credits exceeds the product of such tax and such
fraction, the amount of the excess may be carried forward, in order, to
each of the seven immediately succeeding taxable years and, to the
extent not previously taken, shall be allowed as a credit in each of
such years. In applying such provisions, the credit determined for the
taxable year under paragraph (a) of this subdivision shall be taken
before taking any credit carryforward pursuant to this paragraph and the
credit carryforward attributable to the earliest taxable year shall be
taken before taking a credit carryforward attributable to a subsequent
taxable year.
(2) Intentionally omitted.
(2-a) Notwithstanding any other provision of this subdivision to the
contrary, in the case of a taxpayer that has received, in a taxable year
beginning before January first, two thousand fifteen, the credit set
forth in subdivision eighteen of section 11-604 of this chapter or in
section 11-643.8 of this chapter for a tax paid under chapter five of
this title in a taxable year beginning before January first, two thou-
sand fifteen, the taxpayer may carry forward the unused portion of such
credit under this subdivision to any taxable year beginning on or after
January first, two thousand fifteen in the same amount and to the same
extent, including the same limitations, that the credit, or the unused
portion thereof, would have been allowed to be carried forward under
subparagraph one of paragraph (b) of subdivision eighteen of section
11-604 of this chapter or paragraph one of subdivision (b) of section
11-643.8 of this chapter, as in effect on December thirty-first, two
thousand fourteen, if such subdivision continued to apply to the taxpay-
er for such taxable year.
(3) No credit allowed under this subdivision may be taken in a taxable
year by a taxpayer that, in the absence of such credit, would be liable
for the tax computed on the basis of business capital under clause (ii)
of subparagraph one of paragraph (e) of subdivision one of this section
or the fixed-dollar minimum tax under clause (iv) of subparagraph one of
paragraph (e) of subdivision one of this section.
(c) For corporations that file a report on a combined basis pursuant
to section 11-654.3 of this subchapter, the credit allowed by this
subdivision shall be computed as if the combined group were the partner
in each unincorporated business from which any of the members of such
group had a distributive share or guaranteed payments, provided, howev-
er, if more than one member of the combined group is a partner in the
same unincorporated business, for purposes of the calculation required
in subparagraph one of paragraph (a) of this subdivision, the numerator
A. 10030 629
of the fraction described in clause (ii) of such subparagraph one shall
be the sum of the net total distributive shares of income, gain, loss
and deductions of, and guaranteed payments from, the unincorporated
business of all of the partners of the unincorporated business within
the combined group for which such net total, as separately determined
for each partner, is greater than zero, and the denominator of such
fraction shall be the sum of the net total distributive shares of
income, gain, loss and deductions of, and guaranteed payments from, the
unincorporated business of all partners in the unincorporated business
for whom or which such net total, as separately determined for each
partner, is greater than zero.
(d) Notwithstanding any other provision of this subchapter, the credit
allowable under this subdivision shall be taken prior to the taking of
any other credit allowed by this section. Notwithstanding any other
provision of this subchapter, the application of this subdivision shall
not change the basis on which the taxpayer's tax is computed under para-
graph (e) of subdivision one of this section.
19. Lower Manhattan relocation and employment assistance credit. (a)
In addition to any other credit allowed by this section, a taxpayer that
has obtained the certifications required by chapter six-C of title twen-
ty-two of the code of the preceding municipality shall be allowed a
credit against the tax imposed by this subchapter. The amount of the
credit shall be the amount determined by multiplying three thousand
dollars by the number of eligible aggregate employment shares maintained
by the taxpayer during the taxable year with respect to eligible prem-
ises to which the taxpayer has relocated; provided, however, that no
credit shall be allowed for the relocation of any retail activity or
hotel services; provided, further, that no credit shall be allowed under
this subdivision to any taxpayer that has elected pursuant to subdivi-
sion (d) of section 22-624 of the code of the preceding municipality to
take such credit against a gross receipts tax imposed under chapter
eleven of this title. For purposes of this subdivision, the terms
"eligible aggregate employment shares," "eligible premises," "relocate,"
"retail activity" and "hotel services" shall have the meanings ascribed
by section 22-623 of the code of the preceding municipality.
(b) The credit allowed under this subdivision with respect to eligible
aggregate employment shares maintained with respect to eligible premises
to which the taxpayer has relocated shall be allowed for the taxable
year of the relocation and for any of the twelve succeeding taxable
years during which eligible aggregate employment shares are maintained
with respect to eligible premises; provided that the credit allowed for
the twelfth succeeding taxable year shall be calculated by multiplying
the number of eligible aggregate employment shares maintained with
respect to eligible premises in the twelfth succeeding taxable year by
the lesser of one and a fraction the numerator of which is such number
of days in the taxable year of relocation less the number of days the
taxpayer maintained employment shares in eligible premises in the taxa-
ble year of relocation and the denominator of which is the number of
days in such twelfth taxable year during which such eligible aggregate
employment shares are maintained with respect to such premises.
(c) Except as provided in paragraph (d) of this subdivision, if the
amount of the credit allowable under this subdivision for any taxable
year exceeds the tax imposed for such year, the excess may be carried
over, in order, to the five immediately succeeding taxable years and, to
the extent not previously deductible, may be deducted from the taxpay-
er's tax for such years.
A. 10030 630
(d) The credits allowed under this subdivision, against the tax
imposed by this chapter for the taxable year of the relocation and for
the four taxable years immediately succeeding the taxable year of such
relocation, shall be deemed to be overpayments of tax by the taxpayer to
be credited or refunded, without interest, in accordance with the
provisions of section 11-677 of this chapter. For such taxable years,
such credits or portions thereof may not be carried over to any succeed-
ing taxable year.
(e) The credit allowable under this subdivision shall be deducted
after the credits allowed by subdivisions seventeen and eighteen of this
section, but prior to the deduction of any other credit allowed by this
section.
(f) Notwithstanding any other provision of this subdivision to the
contrary, in the case of a taxpayer that has obtained, pursuant to chap-
ter six-C of title twenty-two of the code of the preceding municipality,
a certification of eligibility and has received, in a taxable year
beginning before January first, two thousand fifteen, the credit set
forth in subdivision nineteen of section 11-604 of this chapter or
section 11-643.9 of this chapter for the relocation of an eligible busi-
ness, a credit shall be allowed under this subdivision to the taxpayer
for any taxable year beginning on or after January first, two thousand
fifteen in the same amount and to the same extent that a credit would
have been allowed under subdivision nineteen of section 11-604 of this
chapter or section 11-643.9 of this chapter, as in effect on December
thirty-first, two thousand fourteen, if such subdivision continued to
apply to the taxpayer for such taxable year.
20. Intentionally omitted.
21. Biotechnology credit. (a) (1) A taxpayer that is a qualified
emerging technology company, engages in biotechnologies, and meets the
eligibility requirements of this subdivision, shall be allowed a credit
against the tax imposed by this subchapter. The amount of credit shall
be equal to the sum of the amounts specified in subparagraphs three,
four and five of this paragraph, subject to the limitations in subpara-
graphs six and seven of this paragraph, paragraph (b) of this subdivi-
sion, and paragraph three of subdivision (d) of section twelve hundred
one-a of the tax law. For the purposes of this subdivision, "qualified
emerging technology company" shall mean a company located in the city:
(i) whose primary products or services are classified as emerging tech-
nologies and whose total annual product sales are ten million dollars or
less; or
(ii) a company that has research and development activities in the
city and whose ratio of research and development funds to net sales
equals or exceeds the average ratio for all surveyed companies classi-
fied as determined by the National Science Foundation in the most recent
published results from its Survey of Industry Research and Development,
or any comparable successor survey as determined by the department of
finance, and whose total annual product sales are ten million dollars or
less. For the purposes of this subdivision, the definition of research
and development funds shall be the same as that used by the National
Science Foundation in the aforementioned survey. For the purposes of
this subdivision, "biotechnologies" shall mean the technologies involv-
ing the scientific manipulation of living organisms, especially at the
molecular and/or the sub-molecular genetic level, to produce products
conducive to improving the lives and health of plants, animals, and
humans; and the associated scientific research, pharmacological, mechan-
ical, and computational applications and services connected with these
A. 10030 631
improvements. Activities included with such applications and services
shall include, but not be limited to, alternative mRNA splicing, DNA
sequence amplification, antigenetic switching bioaugmentation, bioen-
richment, bioremediation, chromosome walking, cytogenetic engineering,
DNA diagnosis, fingerprinting, and sequencing, electroporation, gene
translocation, genetic mapping, site-directed mutagenesis, bio-transduc-
tion, bio-mechanical and bio-electrical engineering, and bio-informat-
ics.
(2) An eligible taxpayer shall (i) have no more than one hundred full-
time employees, of which at least seventy-five percent are employed in
the city, (ii) have a ratio of research and development funds to net
sales, as referred to in section thirty-one hundred two-e of the public
authorities law, which equals or exceeds six percent during the calendar
year ending with or within the taxable year for which the credit is
claimed, and (iii) have gross revenues, along with the gross revenues of
its "affiliates" and "related members" not exceeding twenty million
dollars for the calendar year immediately preceding the calendar year
ending with or within the taxable year for which the credit is claimed.
For the purposes of this subdivision, "affiliates" shall mean those
corporations that are members of the same affiliated group, as defined
in section fifteen hundred four of the internal revenue code, as the
taxpayer. For the purposes of this subdivision, the term "related
members" shall mean a person, corporation, or other entity, including an
entity that is treated as a partnership or other pass-through vehicle
for purposes of federal taxation, whether such person, corporation or
entity is a taxpayer or not, where one such person, corporation or enti-
ty, or set of related persons, corporations or entities, directly or
indirectly owns or controls a controlling interest in another entity.
Such entity or entities may include all taxpayers under chapters five,
eleven and seventeen of this title, and this subchapter and subchapters
two and three of this chapter. A controlling interest shall mean, in the
case of a corporation, either thirty percent or more of the total
combined voting power of all classes of stock of such corporation, or
thirty percent or more of the capital, profits or beneficial interest in
such voting stock of such corporation; and in the case of a partnership,
association, trust or other entity, thirty percent or more of the capi-
tal, profits or beneficial interest in such partnership, association,
trust or other entity.
(3) An eligible taxpayer shall be allowed a credit for eighteen per
centum of the cost or other basis for federal income tax purposes of
research and development property that is acquired by the taxpayer by
purchase as defined in subsection (d) of section one hundred seventy-
nine of the internal revenue code and placed in service during the
calendar year that ends with or within the taxable year for which the
credit is claimed. Provided, however, for the purposes of this paragraph
only, an eligible taxpayer shall be allowed a credit for such percentage
of the (i) cost or other basis for federal income tax purposes for prop-
erty used in the testing or inspection of materials and products, (ii)
the costs or expenses associated with quality control of the research
and development, (iii) fees for use of sophisticated technology facili-
ties and processes, and (iv) fees for the production or eventual commer-
cial distribution of materials and products resulting from the activ-
ities of an eligible taxpayer as long as such activities fall under
activities relating to biotechnologies. The costs, expenses and other
amounts for which a credit is allowed and claimed under this paragraph
shall not be used in the calculation of any other credit allowed under
A. 10030 632
this subchapter. For the purposes of this subdivision, "research and
development property" shall mean property that is used for purposes of
research and development in the experimental or laboratory sense. Such
purposes shall not be deemed to include the ordinary testing or
inspection of materials or products for quality control, efficiency
surveys, management studies, consumer surveys, advertising, promotions,
or research in connection with literary, historical or similar projects.
(4) An eligible taxpayer shall be allowed a credit for nine per centum
of qualified research expenses paid or incurred by the taxpayer in the
calendar year that ends with or within the taxable year for which the
credit is claimed. For the purposes of this subdivision, "qualified
research expenses" shall mean expenses associated with in-house research
and processes, and costs associated with the dissemination of the
results of the products that directly result from such research and
development activities; provided, however, that such costs shall not
include advertising or promotion through media. In addition, costs asso-
ciated with the preparation of patent applications, patent application
filing fees, patent research fees, patent examinations fees, patent post
allowance fees, patent maintenance fees, and grant application expenses
and fees shall qualify as qualified research expenses. In no case shall
the credit allowed under this subparagraph apply to expenses for liti-
gation or the challenge of another entity's intellectual property
rights, or for contract expenses involving outside paid consultants.
(5) An eligible taxpayer shall be allowed a credit for qualified high-
technology training expenditures as described in this subparagraph paid
or incurred by the taxpayer during the calendar year that ends with or
within the taxable year for which the credit is claimed.
(i) The amount of credit shall be one hundred percent of the training
expenses described in clause (iii) of this subparagraph, subject to a
limitation of no more than four thousand dollars per employee per calen-
dar year for such training expenses.
(ii) Qualified high-technology training shall include a course or
courses taken and satisfactorily completed by an employee of the taxpay-
er at an accredited, degree granting post-secondary college or universi-
ty in the city that (A) directly relates to biotechnology activities,
and (B) is intended to upgrade, retrain or improve the productivity or
theoretical awareness of the employee. Such course or courses may
include, but are not limited to, instruction or research relating to
techniques, meta, macro, or micro-theoretical or practical knowledge
bases or frontiers, or ethical concerns related to such activities. Such
course or courses shall not include classes in the disciplines of
management, accounting or the law or any class designed to fulfill the
discipline specific requirements of a degree program at the associate,
baccalaureate, graduate or professional level of these disciplines.
Satisfactory completion of a course or courses shall mean the earning
and granting of credit or equivalent unit, with the attainment of a
grade of "B" or higher in a graduate level course or courses, a grade of
"C" or higher in an undergraduate level course or courses, or a similar
measure of competency for a course that is not measured according to a
standard grade formula.
(iii) Qualified high-technology training expenditures shall include
expenses for tuition and mandatory fees, software required by the insti-
tution, fees for textbooks or other literature required by the institu-
tion offering the course or courses, minus applicable scholarships and
tuition or fee waivers not granted by the taxpayer or any affiliates of
the taxpayer, that are paid or reimbursed by the taxpayer. Qualified
A. 10030 633
high-technology expenditures do not include room and board, computer
hardware or software not specifically assigned for such course or cours-
es, late-charges, fines or membership dues and similar expenses. Such
qualified expenditures shall not be eligible for the credit provided by
this section unless the employee for whom the expenditures are disbursed
is continuously employed by the taxpayer in a full-time, full-year posi-
tion primarily located at a qualified site during the period of such
coursework and lasting through at least one hundred eighty days after
the satisfactory completion of the qualifying course-work. Qualified
high-technology training expenditures shall not include expenses for
in-house or shared training outside of a city higher education institu-
tion or the use of consultants outside of credit granting courses,
whether such consultants function inside of such higher education insti-
tution or not.
(iv) If a taxpayer relocates from an academic business incubator
facility partnered with an accredited post-secondary education institu-
tion located within the city, which provides space and business support
services to taxpayers, to another site, the credit provided in this
subdivision shall be allowed for all expenditures referenced in clause
(iii) of this subparagraph paid or incurred in the two preceding calen-
dar years that the taxpayer was located in such an incubator facility
for employees of the taxpayer who also relocate from said incubator
facility to such city site and are employed and primarily located by the
taxpayer in the city. Such expenditures in the two preceding years shall
be added to the amounts otherwise qualifying for the credit provided by
this subdivision that were paid or incurred in the calendar year that
the taxpayer relocates from such a facility. Such expenditures shall
include expenses paid for an eligible employee who is a full-time, full-
year employee of said taxpayer during the calendar year that the taxpay-
er relocated from an incubator facility notwithstanding (A) that such
employee was employed full or part-time as an officer, staff-person or
paid intern of the taxpayer when such taxpayer was located at such incu-
bator facility or (B) that such employee was not continuously employed
when such taxpayer was located at the incubator facility during the one
hundred eighty day period referred to in clause (iii) of this subpara-
graph, provided such employee received wages or equivalent income for at
least seven hundred fifty hours during any twenty-four month period when
the taxpayer was located at the incubator facility. Such expenditures
shall include payments made to such employee after the taxpayer has
relocated from the incubator facility for qualified expenditures if such
payments are made to reimburse an employee for expenditures paid by the
employee during such two preceding years. The credit provided under
this paragraph shall be allowed in any taxable year that the taxpayer
qualifies as an eligible taxpayer.
(v) For purposes of this subdivision the term "academic year" shall
mean the annual period of sessions of a post-secondary college or
university.
(vi) For the purposes of this subdivision the term "academic incubator
facility" shall mean a facility providing low-cost space, technical
assistance, support services and educational opportunities, including
but not limited to central services provided by the manager of the
facility to the tenants of the facility, to an entity located in the
city. Such entity's primary activity must be in biotechnologies, and
such entity must be in the formative stage of development. The academic
incubator facility and the entity must act in partnership with an
accredited post-secondary college or university located in the city. An
A. 10030 634
academic incubator facility's mission shall be to promote job creation,
entrepreneurship, technology transfer, and provide support services to
incubator tenants, including, but not limited to, business planning,
management assistance, financial-packaging, linkages to financing
services, and coordinating with other sources of assistance.
(6) An eligible taxpayer may claim credits under this subdivision for
three consecutive years. In no case shall the credit allowed by this
subdivision to a taxpayer exceed two hundred fifty thousand dollars per
calendar year for eligible expenditures made during such calendar year.
(7) The credit allowed under this subdivision for any taxable year
shall not reduce the tax due for such year to less than the amount
prescribed in clause (iv) of subparagraph one of paragraph (e) of subdi-
vision one of this section. Provided, however, if the amount of credit
allowed under this subdivision for any taxable year reduces the tax to
such amount, any amount of credit not deductible in such taxable year
shall be treated as an overpayment of tax to be credited or refunded in
accordance with the provisions of section 11-677 of this chapter;
provided, however, that notwithstanding the provisions of section 11-679
of this chapter, no interest shall be paid thereon.
(8) The credit allowed under this subdivision shall only be allowed
for taxable years beginning before January first, two thousand nineteen.
(b) (1) The percentage of the credit allowed to a taxpayer under this
subdivision in any calendar year shall be:
(i) If the average number of individuals employed full time by a
taxpayer in the city during the calendar year that ends with or within
the taxable year for which the credit is claimed is at least one hundred
five percent of the taxpayer's base year employment, one hundred
percent, except that in no case shall the credit allowed under this
clause exceed two hundred fifty thousand dollars per calendar year.
Provided, however, the increase in base year employment shall not apply
to a taxpayer allowed a credit under this subdivision that was, (A)
located outside of the city, (B) not doing business, or (C) did not have
any employees, in the year preceding the first year that the credit is
claimed. Any such taxpayer shall be eligible for one hundred percent of
the credit for the first calendar year that ends with or within the
taxable year for which the credit is claimed, provided that such taxpay-
er locates in the city, begins doing business in the city or hires
employees in the city during such calendar year and is otherwise eligi-
ble for the credit pursuant to the provisions of this subdivision.
(ii) If the average number of individuals employed full time by a
taxpayer in the city during the calendar year that ends with or within
the taxable year for which the credit is claimed is less than one
hundred five percent of the taxpayer's base year employment, fifty
percent, except that in no case shall the credit allowed under this
clause exceed one hundred twenty-five thousand dollars per calendar
year. In the case of an entity located in the city receiving space and
business support services by an academic incubator facility, if the
average number of individuals employed full time by such entity in the
city during the calendar year in which the credit allowed under this
subdivision is claimed is less than one hundred five percent of the
taxpayer's base year employment, the credit shall be zero.
(2) For the purposes of this subdivision, "base year employment" means
the average number of individuals employed full-time by the taxpayer in
the city in the year preceding the first calendar year that ends with or
within the taxable year for which the credit is claimed.
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(3) For the purposes of this subdivision, average number of individ-
uals employed full-time shall be computed by adding the number of such
individuals employed by the taxpayer at the end of each quarter during
each calendar year or other applicable period and dividing the sum so
obtained by the number of such quarters occurring within such calendar
year or other applicable period.
(4) Notwithstanding anything contained in this section to the contra-
ry, the credit provided by this subdivision shall be allowed against the
taxes authorized by this chapter for the taxable year after reduction by
all other credits permitted by this chapter.
(c) Notwithstanding any other provision of this subdivision to the
contrary, in the case of a taxpayer that has received, in a taxable year
beginning before January first, two thousand fifteen, the credit set
forth in subdivision twenty-one of section 11-604 of this chapter for an
eligible acquisition of property and/or expense paid or incurred, a
credit shall be allowed to the taxpayer under this subdivision for any
tax year beginning on or after January first, two thousand fifteen in
the same amount and to the same extent that a credit would have been
allowed under subdivision twenty-one of section 11-604 of this chapter,
as in effect on December thirty-first, two thousand fourteen, if such
subdivision continued to apply to the taxpayer for such taxable year.
22. Beer production credit. (a) A taxpayer subject to tax under this
subchapter, that is registered as a distributor under article eighteen
of the tax law, and that produces sixty million or fewer gallons of beer
in this state in the taxable year, shall be allowed a credit against the
tax imposed by this subchapter in the amount specified in paragraph (b)
of this subdivision. Provided, however, that no credit shall be allowed
for any beer produced in excess of fifteen million five hundred thousand
gallons in the taxable year. Notwithstanding anything in this title to
the contrary, if a partnership is allowed a credit under subdivision (p)
of section 11-503 of this title, a taxpayer that is a partner in such
partnership shall not be allowed a credit under this subdivision for any
taxable year that includes the last day of the taxable year for which
the partnership is allowed such credit.
(b) The amount of the credit per taxpayer per taxable year for each
gallon of beer produced in the city of New York on or after January
first, two thousand seventeen shall be determined as follows:
(1) for the first five hundred thousand gallons of beer produced in
the city of New York in the taxable year, the credit shall equal twelve
cents per gallon; and
(2) for each gallon of beer produced in the city of New York in the
taxable year in excess of five hundred thousand gallons, the credit
shall equal three and eighty-six one-hundredths cents per gallon. In no
event shall the credit allowed under this subdivision for any taxable
year reduce the tax due for such year to less than the amount prescribed
in subparagraph one of paragraph (e) of subdivision one of this section.
However, if the amount of credit allowed under this subdivision for any
taxable year reduces the tax to such amount, any amount of credit thus
not deductible in such taxable year shall be treated as an overpayment
of tax to be credited or refunded in accordance with the provisions of
section 11-677 of this chapter; provided, however, that notwithstanding
the provisions of section 11-679 of this chapter, no interest shall be
paid thereon.
23. Credit for the provision of child care. In addition to any other
credit allowed under this section, a taxpayer whose application for a
credit authorized by section 11-144 of this title has been approved by
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the department of finance shall be allowed a credit against the tax
imposed by this chapter. The amount of the credit shall be determined as
provided in such section. To the extent the amount of the credit allowed
by this subdivision exceeds the amount of tax due pursuant to this
subchapter, as calculated without such credit, such excess amount shall
be treated as an overpayment of tax to be credited or refunded in
accordance with the provisions of section 11-677 of this chapter,
provided, however, that notwithstanding the requirements of section
11-679 of this chapter to the contrary, no interest shall be paid there-
on.
§ 11-654.1 Net operating loss. 1. In computing the business income
subject to tax, taxpayers shall be allowed both a prior net operating
loss conversion subtraction under subdivision two of this section and a
net operating loss deduction under subdivision three of this section.
The prior net operating loss conversion subtraction computed under
subdivision two of this section shall be applied against business income
before the net operating loss deduction computed under subdivision three
of this section.
2. Prior net operating loss conversion subtraction. (a) Definitions.
(1) "Base year" means the last taxable year beginning on or after Janu-
ary first, two thousand fourteen and before January first, two thousand
fifteen.
(2) "Unabsorbed net operating loss" means the unabsorbed portion of
net operating loss as calculated under paragraph (f) of subdivision
eight of section 11-602 of this chapter or subdivision (k-1) of section
11-641 of this chapter, as such sections were in effect on December
thirty-first, two thousand fourteen, that was not deductible in previous
taxable years and was eligible for carryover on the last day of the base
year subject to the limitations for deduction under such sections,
including any net operating loss sustained by the taxpayer during the
base year.
(3) "Base year BAP" means the taxpayer's business allocation percent-
age as calculated under paragraph (a) of subdivision three of section
11-604 of this chapter for the base year, or the taxpayer's allocation
percentage as calculated under section 11-642 of this chapter for
purposes of calculating entire net income for the base year, as such
sections were in effect on December thirty-first, two thousand fourteen.
(4) "Base year tax rate" means the taxpayer's tax rate for the base
year as applied to entire net income and calculated under subdivision
one of section 11-604 of this chapter or subdivision (a) of section
11-643.5 of this chapter, as such provisions were in effect on December
thirty-first, two thousand fourteen.
(b) The prior net operating loss conversion subtraction shall be
calculated as follows:
(1) The taxpayer shall first calculate the tax value of its unabsorbed
net operating loss for the base year. The value is equal to the product
of (i) the amount of the taxpayer's unabsorbed net operating loss, (ii)
the taxpayer's base year BAP, and (iii) the taxpayer's base year tax
rate.
(2) The product determined under subparagraph one of this paragraph
shall then be divided by eight and eighty-five one-hundredths per centum
or, in the case of a financial corporation, as defined in clause (i) of
subparagraph one of paragraph (e) of subdivision one of section 11-654
of this subchapter, the product determined under subparagraph one of
this paragraph shall then be divided by nine per centum. This result
A. 10030 637
shall equal the taxpayer's prior net operating loss conversion
subtraction pool.
(3) The taxpayer's prior net operating loss conversion subtraction for
the taxable year shall equal one-tenth of its prior net operating loss
conversion subtraction pool, plus any amount of unused prior net operat-
ing loss conversion subtraction from preceding taxable years.
(4) In lieu of the prior net operating loss conversion subtraction
described in subparagraph three of this paragraph, if the taxpayer so
elects, the taxpayer's prior net operating loss conversion subtraction
for its taxable years beginning on or after January first, two thousand
fifteen and before January first, two thousand seventeen shall equal, in
each year, not more than one-half of its prior net operating loss
conversion subtraction pool until the pool is exhausted. If the pool is
not exhausted at the end of such time period, the remainder of the pool
shall be forfeited. The taxpayer shall make such election, which shall
be revocable, on its first return for the tax year beginning on or after
January first, two thousand fifteen and before January first, two thou-
sand sixteen by the due date for such return, determined with regard to
extensions.
(c) (1) Where a taxpayer was properly included or required to be
included in a combined report for the base year pursuant to section
11-605 of this chapter or a combined return for the base year pursuant
to section 11-646 of this chapter, as such sections were in effect on
December thirty-first, two thousand fourteen, and the members of the
combined group for the base year are the same as the members of the
combined group for the taxable year immediately succeeding the base
year, the combined group shall calculate its prior net operating loss
conversion subtraction pool using the combined group's total unabsorbed
net operating loss, base year BAP, and base year tax rate.
(2) If a combined group includes additional members in the taxable
year immediately succeeding the base year that were not included in the
combined group during the base year, each base year combined group and
each taxpayer that filed separately for the base year but is included in
the combined group in the taxable year succeeding the base year shall
calculate its prior net operating loss conversion subtraction pool, and
the sum of the pools shall be the combined prior net operating loss
conversion subtraction pool of the combined group.
(3) If a taxpayer was properly included in a combined report for the
base year and files a separate report for a subsequent taxable year,
then the amount of remaining prior net operating loss conversion
subtraction allowed to the taxpayer filing such separate report shall be
proportionate to the amount that such taxpayer contributed to the prior
net operating loss conversion subtraction pool on a combined basis, and
the remaining prior net operating loss conversion subtraction allowed to
the remaining members of the combined group shall be reduced according-
ly.
(4) If a taxpayer filed a separate report for the base year and is
properly included in a combined report for a subsequent taxable year,
then the prior net operating loss conversion subtraction pool of the
combined group shall be increased by the amount of the remaining prior
net operating loss conversion subtraction allowed to the taxpayer at the
time the taxpayer is properly included in the combined group.
(d) The prior net operating loss conversion subtraction may be used to
reduce the taxpayer's tax on allocated business income to the higher of
the tax on business capital under clause (ii) of subparagraph one of
paragraph (e) of subdivision one of section 11-654 of this subchapter or
A. 10030 638
the fixed dollar minimum under clause (iv) of subparagraph one of para-
graph (e) of subdivision one of section 11-654 of this subchapter.
Unless the taxpayer has made the election provided for in subparagraph
four of paragraph (b) of this subdivision, any amount of unused prior
net operating loss conversion subtraction shall be carried forward to a
subsequent tax year or subsequent tax years until the prior net operat-
ing loss conversion subtraction pool is exhausted, but for no longer
than twenty taxable years or the taxable year beginning on or after
January first, two thousand thirty-five but before January first, two
thousand thirty-six, whichever comes first. Such amount carried forward
shall not be subject to the one-tenth limitation for the subsequent tax
year or years under subparagraph three of paragraph (b) of this subdivi-
sion. However, if the taxpayer elects to compute its prior net operat-
ing loss conversion subtraction pursuant to subparagraph four of para-
graph (b) of this subdivision, the taxpayer shall not carry forward any
unused amount of such prior net operating loss conversion subtraction to
any tax year beginning on or after January first, two thousand seven-
teen.
3. In computing business income, a net operating loss deduction shall
be allowed. A net operating loss deduction shall be the amount of net
operating loss or losses from one or more taxable years that are carried
forward or carried back to a particular taxable year. A net operating
loss shall be the amount of a business loss incurred in a particular tax
year multiplied by the business allocation percentage for that year as
determined under subdivision three of section 11-654 of this subchapter.
The maximum net operating loss deduction that is allowed in a taxable
year shall be the amount that reduces the taxpayer's tax on allocated
business income to the higher of the tax on business capital under
clause (ii) of subparagraph one of paragraph (e) of subdivision one of
section 11-654 of this subchapter or the fixed dollar minimum amount
under clause (iv) of subparagraph one of paragraph (e) of subdivision
one of section 11-654 of this subchapter. Such net operating loss
deduction and net operating loss shall be determined in accordance with
the following:
(a) Such net operating loss deduction shall not be limited to the
amount allowed under section one hundred seventy-two of the internal
revenue code or the amount that would have been allowed if the taxpayer
did not have an election under subchapter S of chapter one of the inter-
nal revenue code in effect for the applicable tax year.
(b) Such net operating loss deduction shall not include any net oper-
ating loss incurred during any taxable year beginning prior to January
first, two thousand fifteen, or during any taxable year in which the
taxpayer was not subject to the tax imposed by this subchapter.
(c) A taxpayer that files as part of a federal consolidated return but
on a separate basis for purposes of this subchapter shall compute its
deduction and loss as if it were filing on a separate basis for federal
income tax purposes.
(d) A net operating loss may be carried back three taxable years
preceding the taxable year of the loss except that no loss may be
carried back to a taxable year beginning before January first, two thou-
sand fifteen. The loss first shall be carried to the earliest of the
three taxable years preceding the taxable year of the loss. If it is not
entirely used in that year, it shall be carried to the second taxable
year preceding the taxable year of the loss, and any remaining amount
shall be carried to the taxable year immediately preceding the taxable
year of the loss. Any unused amount of loss then remaining may be
A. 10030 639
carried forward for as many as twenty taxable years following the taxa-
ble year of the loss. Losses carried forward are carried forward first
to the taxable year immediately following the taxable year of the loss,
then to the second taxable year following the taxable year of the loss,
and then to the next immediately subsequent taxable year or years until
the loss is used up or the twentieth taxable year following the taxable
year of the loss, whichever comes first.
(e) Such net operating loss deduction shall not include any net oper-
ating loss incurred during any taxable year commencing after January
first, two thousand fifteen if the taxpayer was subject to tax under
subchapter two or three of this chapter in that year; provided, however,
any year commencing after January first, two thousand fifteen that the
taxpayer was subject to tax under subchapter two or three of this chap-
ter in that year must be treated as a taxable year for purposes of
determining the number of taxable years to which a net operating loss
may be carried forward.
(f) Where there are two or more allocated net operating losses, or
portions thereof, carried back or carried forward to be deducted in one
particular tax year from allocated business income, the earliest allo-
cated loss incurred must be applied first.
(g) A taxpayer may elect to waive the entire carryback period with
respect to a net operating loss. Such election must be made on the
taxpayer's original timely filed return, determined with regard to
extensions, for the taxable year of the net operating loss for which the
election is to be in effect. Once an election is made for a taxable
year, it shall be irrevocable for that taxable year. A separate election
must be made for each taxable year of the loss. This election applies to
all members of a combined group.
§ 11-654.2 Receipts allocation. 1. The percentage of receipts of the
taxpayer to be allocated to the city for purposes of subparagraph two of
paragraph (a) of subdivision three of section 11-654 of this subchapter
shall be equal to the receipts fraction determined pursuant to this
section. The receipts fraction is a fraction, determined by including
only those receipts, net income, net gains, and other items described in
this section that are included in the computation of the taxpayer's
business income, determined without regard to the modification provided
in subparagraph fourteen of paragraph (a) of subdivision eight of
section 11-652 of this subchapter, for the taxable year. The numerator
of the receipts fraction shall be equal to the sum of all the amounts
required to be included in the numerator pursuant to the provisions of
this section and the denominator of the receipts fraction shall be equal
to the sum of all the amounts required to be included in the denominator
pursuant to the provisions of this section.
2. (a) Receipts from sales of tangible personal property where ship-
ments are made to points within the city or the destination of the prop-
erty is a point within the city shall be included in the numerator of
the receipts fraction. Receipts from sales of tangible personal property
where shipments are made to points within and without the city or the
destination is within and without the city shall be included in the
denominator of the receipts fraction.
(b) Receipts from sales of electricity delivered to points within the
city shall be included in the numerator of the receipts fraction.
Receipts from sales of electricity delivered to points within and with-
out the city shall be included in the denominator of the receipts frac-
tion.
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(c) Receipts from sales of tangible personal property and electricity
that are traded as commodities as the term "commodity" is defined in
section four hundred seventy-five of the internal revenue code, shall be
included in the receipts fraction in accordance with clause (ix) of
subparagraph two of paragraph (a) of subdivision five of this section.
(d) Net gains, not less than zero, from the sales of real property
located within the city shall be included in the numerator of the
receipts fraction. Net gains, not less than zero, from the sales of real
property located within and without the city shall be included in the
denominator of the receipts fraction.
3. (a) Receipts from rentals of real and tangible personal property
located within the city shall be included in the numerator of the
receipts fraction. Receipts from rentals of real and tangible personal
property located within and without the city shall be included in the
denominator of the receipts fraction.
(b) Receipts of royalties from the use of patents, copyrights, trade-
marks, and similar intangible personal property within the city shall be
included in the numerator of the receipts fraction. Receipts of royal-
ties from the use of patents, copyrights, trademarks, and similar intan-
gible personal property within and without the city shall be included in
the denominator of the receipts fraction. A patent, copyright, trade-
mark, or similar intangible personal property is used within the city to
the extent that the activities thereunder are carried on within the
city.
(c) Receipts from the sales of rights for closed-circuit and cable
television transmissions of an event, other than events occurring on a
regularly scheduled basis, taking place within the city as a result of
the rendition of services by employees of the corporation, as athletes,
entertainers or performing artists, shall be included in the numerator
of the receipts fraction to the extent that such receipts are attribut-
able to such transmissions received or exhibited within the city.
Receipts from all sales of rights for closed-circuit and cable tele-
vision transmissions of an event, other than events occurring on a regu-
larly scheduled basis, shall be included in the denominator of the
receipts fraction.
4. (a) For purposes of determining the receipts fraction under this
section, the term "digital product" means any property or service, or
combination thereof, of whatever nature delivered to the purchaser
through the use of wire, cable, fiber-optic, laser, microwave, radio
wave, satellite or similar successor media, or any combination thereof.
Digital product includes, but is not limited to, an audio work, audi-
ovisual work, visual work, book or literary work, graphic work, game,
information or entertainment service, storage of digital products and
computer software by whatever means delivered. The term "delivered to"
includes furnished or provided to or accessed by. A digital product
shall not include legal, medical, accounting, architectural, research,
analytical, engineering or consulting services provided by the taxpayer.
(b) Receipts from the sale of, license to use, or granting of remote
access to digital products within the city, determined according to the
hierarchy of methods set forth in subparagraphs one through four of
paragraph (c) of this subdivision, shall be included in the numerator of
the receipts fraction. Receipts from the sale of, license to use, or
granting of remote access to digital products within and without the
city shall be included in the denominator of the receipts fraction. The
taxpayer must exercise due diligence under each method described in
paragraph (c) of this subdivision before rejecting it and proceeding to
A. 10030 641
the next method in the hierarchy, and must base its determination on
information known to the taxpayer or information that would be known to
the taxpayer upon reasonable inquiry. If the receipt for a digital prod-
uct is comprised of a combination of property and services, it cannot be
divided into separate components and shall be considered to be one
receipt regardless of whether it is separately stated for billing
purposes. The entire receipt must be allocated by this hierarchy.
(c) The hierarchy of sourcing methods is as follows: (1) the custom-
er's primary use location of the digital product; (2) the location where
the digital product is received by the customer, or is received by a
person designated for receipt by the customer; (3) the receipts fraction
determined pursuant to this subdivision for the preceding taxable year
for such digital product; or (4) the receipts fraction in the current
taxable year for those digital products that can be sourced using the
hierarchy of sourcing methods in subparagraphs one and two of this para-
graph.
5. (a) A financial instrument is a "nonqualified financial instrument"
if it is not a qualified financial instrument. A qualified financial
instrument means a financial instrument that is of a type described in
any of clauses (i), (ii), (iii), (iv), (vii), (viii) or (ix) of subpara-
graph two of this paragraph and that has been marked to market in the
taxable year by the taxpayer under section four hundred seventy-five or
section one thousand two hundred fifty-six of the internal revenue code.
Further, if the taxpayer has in the taxable year marked to market a
financial instrument of the type described in any of clauses (i), (ii),
(iii), (iv), (vii), (viii) or (ix) of subparagraph two of this para-
graph, then any financial instrument within that type described in the
above specified clause or clauses that has not been marked to market by
the taxpayer under section four hundred seventy-five or section one
thousand two hundred fifty-six of the internal revenue code is a quali-
fied financial instrument in the taxable year, provided, however, (i) a
loan secured by real property shall not be a qualified financial instru-
ment, (ii) if the only loans that are marked to market by the taxpayer
under section four hundred seventy-five or section one thousand two
hundred fifty-six of the internal revenue code are loans secured by real
property, then no loans shall be qualified financial instruments, (iii)
stock that is investment capital as defined in paragraph (a) of subdivi-
sion four of section 11-652 of this subchapter shall not be a qualified
financial instrument, and (iv) stock that generates other exempt income
as defined in subdivision five-a of section 11-652 of this subchapter
and that is not marked to market under section four hundred seventy-five
or section one thousand two hundred fifty-six of the internal revenue
code shall not constitute a qualified financial instrument with respect
to the income from that stock that is described in such subdivision
five-a. If a corporation is included in a combined report, the defi-
nition of qualified financial instrument shall be determined on a
combined basis. In the case of RIC or a REIT that is not a captive RIC
or a captive REIT, a qualified financial instrument means a financial
instrument that is of a type described in any of clauses (i), (ii),
(iii), (iv), (vii), (viii) or (ix) of subparagraph two of this para-
graph, other than (i) a loan secured by real property, (ii) stock that
is investment capital as defined in paragraph (a) of subdivision four of
section 11-652 of this subchapter, and (iii) stock that generates other
exempt income as defined in subdivision five-a of section 11-652 of this
subchapter with respect to the income from that stock that is described
in such subdivision five-a.
A. 10030 642
(1) In determining the inclusion of receipts and net gains from quali-
fied financial instruments in the receipts fraction, taxpayers may elect
to use the fixed percentage method described in this subparagraph for
qualified financial instruments. The election is irrevocable, applies to
all qualified financial instruments, and must be made on an annual basis
on the taxpayer's original, timely filed return, determined with regard
to extensions. If the taxpayer elects the fixed percentage method, then
all income, gain or loss, including marked to market net gains as
defined in clause (x) of subparagraph two of this paragraph, from quali-
fied financial instruments constitute business income, gain or loss. If
the taxpayer does not elect to use the fixed percentage method, then
receipts and net gains are included in the receipts fraction in accord-
ance with the customer sourcing method described in subparagraph two of
this paragraph. Under the fixed percentage method, eight percent of all
net income, not less than zero, from qualified financial instruments
shall be included in the numerator of the receipts fraction. All net
income, not less than zero, from qualified financial instruments shall
be included in the denominator of the receipts fraction.
(2) Receipts and net gains from qualified financial instruments, in
cases where the taxpayer did not elect to use the fixed percentage meth-
od described in subparagraph one of this paragraph, and from nonquali-
fied financial instruments shall be included in the receipts fraction in
accordance with this subparagraph. For purposes of this paragraph, an
individual is deemed to be located within the city if his or her billing
address is within the city. A business entity is deemed to be located
within the city if its commercial domicile is located within the city.
(i)(A) Receipts constituting interest from loans secured by real prop-
erty located within the city shall be included in the numerator of the
receipts fraction. Receipts constituting interest from loans secured by
real property located within and without the city shall be included in
the denominator of the receipts fraction.
(B) Receipts constituting interest from loans not secured by real
property shall be included in the numerator of the receipts fraction if
the borrower is located within the city. Receipts constituting interest
from loans not secured by real property, whether the borrower is located
within or without the city, shall be included in the denominator of the
receipts fraction.
(C) Net gains, not less than zero, from sales of loans secured by real
property shall be included in the numerator of the receipts fraction as
provided in this subclause. The amount of net gains from the sales of
loans secured by real property included in the numerator of the receipts
fraction shall be determined by multiplying the net gains by a fraction,
the numerator of which shall be the amount of gross proceeds from sales
of loans secured by real property located within the city and the denom-
inator of which shall be the gross proceeds from sales of loans secured
by real property located within and without the city. Gross proceeds
shall be determined after the deduction of any cost incurred to acquire
the loans but shall not be less than zero. Net gains, not less than
zero, from sales of loans secured by real property located within and
without the city shall be included in the denominator of the receipts
fraction.
(D) Net gains, not less than zero, from sales of loans not secured by
real property shall be included in the numerator of the receipts frac-
tion as provided in this subclause. The amount of net gains from the
sales of loans not secured by real property included in the numerator of
the receipts fraction shall be determined by multiplying the net gains
A. 10030 643
by a fraction, the numerator of which shall be the amount of gross
proceeds from sales of loans not secured by real property to purchasers
located within the city and the denominator of which shall be the amount
of gross proceeds from sales of loans not secured by real property to
purchasers located within and without the city. Gross proceeds shall be
determined after the deduction of any cost incurred to acquire the loans
but shall not be less than zero. Net gains, not less than zero, from
sales of loans not secured by real property shall be included in the
denominator of the receipts fraction.
(E) For purposes of this subdivision, a loan is secured by real prop-
erty if fifty percent or more of the value of the collateral used to
secure the loan, when valued at fair market value as of the time the
loan was entered into, consists of real property.
(ii) Federal, state, and municipal debt. Receipts constituting inter-
est and net gains from sales of debt instruments issued by the United
States, any state, or political subdivision of a state shall not be
included in the numerator of the receipts fraction. Receipts constitut-
ing interest and net gains, not less than zero, from sales of debt
instruments issued by the United States and the state of New York or its
political subdivisions, including the city, shall be included in the
denominator of the receipts fraction. Fifty percent of the receipts
constituting interest and net gains, not less than zero, from sales of
debt instruments issued by other states or their political subdivisions
shall be included in the denominator of the receipts fraction.
(iii) Asset backed securities and other government agency debt. Eight
percent of the interest income from asset backed securities or other
securities issued by government agencies, including but not limited to
securities issued by the government national mortgage association
(GNMA), the federal national mortgage association (FNMA), the federal
home loan mortgage corporation (FHLMC), or the small business adminis-
tration, or eight percent of the interest income from asset backed secu-
rities issued by other entities shall be included in the numerator of
the receipts fraction. Eight percent of the net gains, not less than
zero, from (A) sales of asset backed securities or other securities
issued by government agencies, including but not limited to securities
issued by GNMA, FNMA, FHLMC, or the small business administration, or
(B) sales of other asset backed securities that are sold through a
registered securities broker or dealer or through a licensed exchange,
shall be included in the numerator of the receipts fraction. The amount
of net gains, not less than zero, from sales of other asset backed secu-
rities not referenced in subclause (A) or (B) of this clause included in
the numerator of the receipts fraction shall be determined by multiply-
ing such net gains by a fraction, the numerator of which shall be the
amount of gross proceeds from such sales to purchasers located in the
city and the denominator of which shall be the amount of gross proceeds
from such sales to purchasers located within and without the city.
Receipts constituting interest income from asset backed securities and
other securities referenced in this clause and net gains, not less than
zero, from sales of asset backed securities and other securities refer-
enced in this clause shall be included in the denominator of the
receipts fraction. Gross proceeds shall be determined after the
deduction of any cost to acquire the securities but shall not be less
than zero.
(iv) Receipts constituting interest from corporate bonds shall be
included in the numerator of the receipts fraction if the commercial
domicile of the issuing corporation is within the city. Eight percent of
A. 10030 644
the net gains, not less than zero, from sales of corporate bonds sold
through a registered securities broker or dealer or through a licensed
exchange shall be included in the numerator of the receipts fraction.
The amount of net gains, not less than zero, from other sales of corpo-
rate bonds included in the numerator of the receipts fraction shall be
determined by multiplying such net gains by a fraction, the numerator of
which is the amount of gross proceeds from such sales to purchasers
located within the city and the denominator of which is the amount of
gross proceeds from sales to purchasers located within and without the
city. Receipts constituting interest from corporate bonds, whether the
issuing corporation's commercial domicile is within or without the city,
and net gains, not less than zero, from sales of corporate bonds to
purchasers within and without the city shall be included in the denomi-
nator of the receipts fraction. Gross proceeds shall be determined after
the deduction of any cost to acquire the bonds but shall not be less
than zero.
(v) Eight percent of net interest income, not less than zero, from
reverse repurchase agreements and securities borrowing agreements shall
be included in the numerator of the receipts fraction. Net interest
income, not less than zero, from reverse repurchase agreements and secu-
rities borrowing agreements shall be included in the denominator of the
receipts fraction. Net interest income from reverse repurchase agree-
ments and securities borrowing agreements shall be determined for
purposes of this subdivision after the deduction of the interest expense
from the taxpayer's repurchase agreements and securities lending agree-
ments but shall not be less than zero. For this calculation, the amount
of such interest expense shall be the interest expense associated with
the sum of the value of the taxpayer's repurchase agreements where it is
the seller/borrower plus the value of the taxpayer's securities lending
agreements where it is the securities lender, provided such sum is
limited to the sum of the value of the taxpayer's reverse repurchase
agreements where it is the purchaser/lender plus the value of the
taxpayer's securities lending agreements where it is the securities
borrower.
(vi) Eight percent of the net interest, not less than zero, from
federal funds shall be included in the numerator of the receipts frac-
tion. The net interest, not less than zero, from federal funds shall be
included in the denominator of the receipts fraction. Net interest from
federal funds shall be determined after deduction of interest expense
from federal funds.
(vii) Dividends from stock, net gains, not less than zero, from sales
of stock and net gains, not less than zero, from sales of partnership
interests shall not be included in either the numerator or denominator
of the receipts fraction unless the commissioner of finance determines
pursuant to subdivision eleven of this section that inclusion of such
dividends and net gains, not less than zero, is necessary to properly
reflect the business income or capital of the taxpayer.
(viii)(A) Receipts constituting interest from other financial instru-
ments shall be included in the numerator of the receipts fraction if the
payor is located within the city. Receipts constituting interest from
other financial instruments, whether the payor is within or without the
city, shall be included in the denominator of the receipts fraction.
(B) Net gains, not less than zero, from sales of other financial
instruments and other income, not less than zero, from other financial
instruments where the purchaser or payor is located within the city
shall be included in the numerator of the receipts fraction, provided
A. 10030 645
that, if the purchaser or payor is a registered securities broker or
dealer or the transaction is made through a licensed exchange, then
eight percent of the net gains, not less than zero, or other income, not
less than zero, shall be included in the numerator of the receipts frac-
tion. Net gains, not less than zero, from sales of other financial
instruments and other income, not less than zero, from other financial
instruments shall be included in the denominator of the receipts frac-
tion.
(ix) Net income, not less than zero, from sales of physical commod-
ities shall be included in the numerator of the receipts fraction as
provided in this clause. The amount of net income from sales of physical
commodities included in the numerator of the receipts fraction shall be
determined by multiplying the net income from sales of physical commod-
ities by a fraction, the numerator of which shall be the amount of
receipts from sales of physical commodities actually delivered to points
within the city or, if there is no actual delivery of the physical
commodity, sold to purchasers located within the city, and the denomina-
tor of which shall be the amount of receipts from sales of physical
commodities actually delivered to points within and without the city or,
if there is no actual delivery of the physical commodity, sold to
purchasers located within and without the city. Net income, not less
than zero, from sales of physical commodities shall be included in the
denominator of the receipts fraction. Net income, not less than zero,
from sales of physical commodities shall be determined after the
deduction of the cost to acquire or produce the physical commodities.
(x)(A) For purposes of this subdivision, "marked to market" means that
a financial instrument is, under section four hundred seventy-five or
section twelve hundred fifty-six of the internal revenue code, treated
by the taxpayer as sold for its fair market value on the last business
day of the taxpayer's taxable year. "Marked to market gain or loss"
means the gain or loss recognized by the taxpayer under section four
hundred seventy-five or section twelve hundred fifty-six of the internal
revenue code because the financial instrument is treated as sold for its
fair market value on the last business day of the taxpayer's taxable
year.
(B) The amount of marked to market net gains, not less than zero, from
each type of financial instrument that is marked to market included in
the numerator of the receipts fraction shall be determined by multiply-
ing the marked to market net gains, not less than zero, from such type
of financial instrument by a fraction, the numerator of which shall be
the numerator of the receipts fraction for net gains from that type of
financial instrument determined under the applicable clause of this
subparagraph and the denominator of which shall be the denominator of
the receipts fraction for net gains from that type of financial instru-
ment determined under the applicable clause of this subparagraph. Marked
to market net gains, not less than zero, from financial instruments for
which the numerator of the receipts fraction for net gains is determined
under this subparagraph shall be included in the denominator of the
receipts fraction.
(C) If the type of financial instrument that is marked to market is
not otherwise sourced by the taxpayer under this subparagraph, or if the
taxpayer has a net loss from the sales of that type of financial instru-
ment under the applicable clause of this subparagraph, the amount of
marked to market net gains, not less than zero, from that type of finan-
cial instrument included in the numerator of the receipts fraction shall
be determined by multiplying the marked to market net gains, but not
A. 10030 646
less than zero, from that type of financial instrument by a fraction,
the numerator of which shall be the sum of the amount of receipts
included in the numerator of the receipts fraction under clauses (i)
through (ix) of this subparagraph and subclause (B) of this clause, and
the denominator of which shall be the sum of the amount of receipts
included in the denominator of the receipts fraction under clauses (i)
through (ix) of this subparagraph and subclause (B) of this clause.
Marked to market net gains, not less than zero, for which the amount to
be included in the numerator of the receipts fraction is determined
under this subparagraph shall be included in the denominator of the
receipts fraction.
(b) Receipts of a registered securities broker or dealer from securi-
ties or commodities broker or dealer activities described in this para-
graph shall be deemed to be generated within the city as described in
subparagraphs one through eight of this paragraph. Receipts from such
activities generated within the city shall be included in the numerator
of the receipts fraction. Receipts from such activities generated within
and without the city shall be included in the denominator of the
receipts fraction. For the purposes of this paragraph, the term "securi-
ties" shall have the same meaning as in paragraph two of subsection (c)
of section four hundred seventy-five of the internal revenue code and
the term "commodities" shall have the same meaning as in paragraph two
of subsection (e) of section four hundred seventy-five of the internal
revenue code.
(1) Receipts constituting brokerage commissions derived from the
execution of securities or commodities purchase or sales orders for the
accounts of customers shall be deemed to be generated within the city if
the mailing address in the records of the taxpayer of the customer who
is responsible for paying such commissions is within the city.
(2) Receipts constituting margin interest earned on behalf of broker-
age accounts shall be deemed to be generated within the city if the
mailing address in the records of the taxpayer of the customer who is
responsible for paying such margin interest is within the city.
(3) (i) Receipts constituting fees earned by the taxpayer for advisory
services to a customer in connection with the underwriting of securities
for such customer, such customer being the entity that is contemplating
issuing or is issuing securities, or fees earned by the taxpayer for
managing an underwriting shall be deemed to be generated within the city
if the mailing address in the records of the taxpayer of such customer
who is responsible for paying such fees is within the city.
(ii) Receipts constituting the primary spread of selling concession
from underwritten securities shall be deemed to be generated within the
city if the customer is located within the city.
(iii) The term "primary spread" means the difference between the price
paid by the taxpayer to the issuer of the securities being marketed and
the price received from the subsequent sale of the underwritten securi-
ties at the initial public offering price, less any selling concession
and any fees paid to the taxpayer for advisory services or any manager's
fees, if such fees are not paid by the customer to the taxpayer sepa-
rately. The term "public offering price" means the price agreed upon by
the taxpayer and the issuer at which the securities are to be offered to
the public. The term "selling concession" means the amount paid to the
taxpayer for participating in the underwriting of a security where the
taxpayer is not the lead underwriter.
(4) Receipts constituting account maintenance fees shall be deemed to
be generated within the city if the mailing address in the records of
A. 10030 647
the taxpayer of the customer who is responsible for paying such account
maintenance fees is within the city.
(5) Receipts constituting fees for management or advisory services,
including fees for advisory services in relation to merger or acquisi-
tion activities, but excluding fees paid for services described in para-
graph (d) of this subdivision, shall be deemed to be generated within
the city if the mailing address in the records of the taxpayer of the
customer who is responsible for paying such fees is within the city.
(6) Receipts constituting interest earned by the taxpayer on loans and
advances made by the taxpayer to a corporation affiliated with the
taxpayer but with which the taxpayer is not permitted or required to
file a combined report pursuant to section 11-654.3 of this subchapter
shall be deemed to arise from services performed at the principal place
of business of such affiliated corporation.
(7) If the taxpayer receives any of the receipts enumerated in subpar-
agraphs one through four of this paragraph as a result of a securities
correspondent relationship such taxpayer has with another broker or
dealer with the taxpayer acting in this relationship as the clearing
firm, such receipts shall be deemed to be generated within the city to
the extent set forth in each of such subparagraphs. The amount of such
receipts shall exclude the amount the taxpayer is required to pay to the
correspondent firm for such correspondent relationship. If the taxpayer
receives any of the receipts enumerated in subparagraphs one through
four of this paragraph as a result of a securities correspondent
relationship such taxpayer has with another broker or dealer with the
taxpayer acting in this relationship as the introducing firm, such
receipts shall be deemed to be generated within the city to the extent
set forth in each of such subparagraphs.
(8) If, for the purposes of subparagraph one, subparagraph two, clause
(i) of subparagraph three, subparagraph four, or subparagraph five of
this paragraph, the taxpayer is unable from its records to determine the
mailing address of the customer, eight percent of the receipts shall be
included in the numerator of the receipts fraction.
(c) Receipts relating to the bank, credit, travel, and entertainment
card activities described in this paragraph shall be deemed to be gener-
ated within the city as described in subparagraphs one through four of
this paragraph. Receipts from such activities generated within the city
shall be included in the numerator of the receipts fraction. Receipts
from such activities generated within and without the city shall be
included in the denominator of the receipts fraction.
(1) Receipts constituting interest, and fees and penalties in the
nature of interest, from bank, credit, travel and entertainment card
receivables shall be deemed to be generated within the city if the mail-
ing address of the card holder in the records of the taxpayer is within
the city;
(2) Receipts from service charges and fees from such cards shall be
deemed to be generated within the city if the mailing address of the
card holder in the records of the taxpayer is within the city;
(3) Receipts from merchant discounts shall be deemed to be generated
within the city if the merchant is located within the city. In the case
of a merchant with locations both within and without the city, only
receipts from merchant discounts attributable to sales made from
locations within the city are allocated to the city. It shall be
presumed that the location of the merchant is the address of the
merchant shown on the invoice submitted by the merchant to the taxpayer;
and
A. 10030 648
(4) Receipts from credit card authorization processing, and clearing
and settlement processing received by a credit card processor shall be
deemed to be generated within the city if the location where the credit
card processor's customer accesses the credit card processor's network
is located within the city. The amount of all other receipts received by
a credit card processor not specifically addressed in subdivisions one
through nine or subdivision twelve of this section deemed to be gener-
ated within the city shall be determined by multiplying the total amount
of such other receipts by the average of (i) eight percent and (ii) the
percent of Staten Island access points. The percent of Staten Island
access points shall be the number of locations in Staten Island from
which the credit card processor's customers access the credit card
processor's network divided by the total number of locations in the
United States where the credit card processor's customers access the
credit card processor's network.
(d) Receipts received from an investment company arising from the sale
of management, administration or distribution services to such invest-
ment company shall be included in the denominator of the receipts frac-
tion. The portion of such receipts included in the numerator of the
receipts fraction, such portion referred to herein as the Staten Island
portion, shall be determined as provided in this paragraph.
(1) The Staten Island portion shall be the product of the total of
such receipts from the sale of such services and a fraction. The numera-
tor of that fraction shall be the sum of the monthly percentages, as
defined hereinafter, determined for each month of the investment compa-
ny's taxable year for federal income tax purposes which taxable year
ends within the taxable year of the taxpayer, but excluding any month
during which the investment company had no outstanding shares. The
monthly percentage for each such month shall be determined by dividing
the number of shares in the investment company that are owned on the
last day of the month by shareholders that are located in the city by
the total number of shares in the investment company outstanding on that
date. The denominator of the fraction shall be the number of such month-
ly percentages.
(2)(i) For purposes of this paragraph, an individual, estate or trust
shall be deemed to be located within the city if his, her or its mailing
address in the records of the investment company is located within the
city. A business entity is deemed to be located within the city if its
commercial domicile is located within the city.
(ii) For purposes of this paragraph, the term "investment company"
means a regulated investment company, as defined in section eight
hundred fifty-one of the internal revenue code, and a partnership to
which subsection (a) of section seven thousand seven hundred four of the
internal revenue code applies, by virtue of paragraph three of
subsection (c) of section seven thousand seven hundred four of such
code, and that meets the requirements of subsection (b) of section eight
hundred fifty-one of such code. The provisions of this subparagraph
shall be applied to the taxable year for federal income tax purposes of
the business entity that is asserted to constitute an investment company
that ends within the taxable year of the taxpayer.
(iii) For purposes of this paragraph, the term "receipts received from
an investment company" includes amounts received directly from an
investment company as well as amounts received from the shareholders in
such investment company, in their capacity as such.
(iv) For purposes of this paragraph, the term "management services"
means the rendering of investment advice to an investment company,
A. 10030 649
making determinations as to when sales and purchases of securities are
to be made on behalf of an investment company, or the selling or
purchasing of securities constituting assets of an investment company,
and related activities, but only where such activity or activities are
performed pursuant to a contract with the investment company entered
into pursuant to subsection (a) of section fifteen of the federal
investment company act of nineteen hundred forty, as amended.
(v) For purposes of this paragraph, the term "distribution services"
means the services of advertising, servicing investor accounts, includ-
ing redemptions, marketing shares or selling shares of an investment
company, but, in the case of advertising, servicing investor accounts,
including redemptions, or marketing shares, only where such service is
performed by a person who is, or was, in the case of a closed end compa-
ny, also engaged in the service of selling such shares. In the case of
an open end company, such service of selling shares must be performed
pursuant to a contract entered into pursuant to subsection (b) of
section fifteen of the federal investment company act of nineteen
hundred forty, as amended.
(vi) For purposes of this paragraph, the term "administration
services" includes clerical, accounting, bookkeeping, data processing,
internal auditing, legal and tax services performed for an investment
company but only if the provider of such service or services during the
taxable year in which such service or services are sold also sells
management or distribution services, as defined in subparagraph (v) of
this paragraph, to such investment company.
(e) For purposes of this subdivision, a taxpayer shall use the follow-
ing hierarchy to determine the commercial domicile of a business entity,
based on the information known to the taxpayer or information that would
be known upon reasonable inquiry: (1) the seat of management and control
of the business entity; and (2) the billing address of the business
entity in the taxpayer's records. The taxpayer must exercise due dili-
gence before rejecting the first method in this hierarchy and proceeding
to the next method.
(f) For purposes of this subdivision, the term "registered securities
broker or dealer" means a broker or dealer registered as such by the
securities and exchange commission or a broker or dealer registered as
such by the commodities futures trading commission, and shall include an
OTC derivatives dealer as defined under regulations of the securities
and exchange commission at title 17, part 240, section 3b-12 of the code
of federal regulations (17 CFR 240.3b-12).
5-a. Notwithstanding any other provision of this section, net global
intangible low-taxed income shall be included in the receipts fraction
as provided in this subdivision. Receipts constituting net global intan-
gible low-taxed income shall not be included in the numerator of the
receipts fraction. Receipts constituting net global intangible low-taxed
income shall be included in the denominator of the receipts fraction.
For purposes of this subdivision, the term "net global intangible low-
taxed income" means the amount required to be included in the taxpayer's
federal gross income pursuant to subsection (a) of section nine hundred
fifty-one-D of the internal revenue code less the amount of the
deduction allowed under clause (i) of subparagraph (B) of paragraph one
of subdivision (a) of section two hundred fifty of such code.
6. Receipts from the conduct of a railroad business, including surface
railroad, whether or not operated by steam, subway railroad, elevated
railroad, palace car or sleeping car business, or a trucking business
shall be included in the numerator of the receipts fraction as follows.
A. 10030 650
The amount of receipts from the conduct of a railroad business or a
trucking business included in the numerator of the receipts fraction
shall be determined by multiplying the amount of receipts from such
business by a fraction, the numerator of which shall be the miles in
such business within the city during the period covered by the taxpay-
er's report and the denominator of which shall be the miles in such
business within and without the city during such period. Receipts from
the conduct of the railroad business or a trucking business shall be
included in the denominator of the receipts fraction.
7. (a) Receipts of a taxpayer acting as principal from the activity of
air freight forwarding and like indirect air carrier receipts arising
from such activity shall be included in the numerator of the receipts
fraction as follows: one hundred percent of such receipts if both the
pickup and delivery associated with such receipts are made within the
city and fifty percent of such receipts if either the pickup or delivery
associated with such receipts is made within this city. Such receipts,
whether the pickup or delivery associated with the receipts is within or
without the city, shall be included in the denominator of the receipts
fraction.
(b)(1)(i) The portion of receipts of a taxpayer from aviation
services, other than services described in paragraph (a) of this subdi-
vision, but including the receipts of a qualified air freight forwarder,
to be included in the numerator of the receipts fraction shall be deter-
mined by multiplying its receipts from such aviation services by a
percentage which is equal to the arithmetic average of the following
three percentages:
(A) the percentage determined by dividing the aircraft arrivals and
departures within the city by the taxpayer during the period covered by
its report by the total aircraft arrivals and departures within and
without the city during such period; provided, however, arrivals and
departures solely for maintenance or repair, refueling, where no debar-
kation or embarkation of traffic occurs, arrivals and departures of
ferry and personnel training flights or arrivals and departures in the
event of emergency situations shall not be included in computing such
arrival and departure percentage; provided, further, the commissioner of
finance may also exempt from such percentage aircraft arrivals and
departures of all non-revenue flights including flights involving the
transportation of officers or employees receiving air transportation to
perform maintenance or repair services or where such officers or employ-
ees are transported in conjunction with an emergency situation or the
investigation of an air disaster, other than on a scheduled flight;
provided, however, that arrivals and departures of flights transporting
officers and employees receiving air transportation for purposes other
than specified above, without regard to remuneration, shall be included
in computing such arrival and departure percentage;
(B) the percentage determined by dividing the revenue tons handled by
the taxpayer at airports within the city during such period by the total
revenue tons handled by it at airports within and without the city
during such period; and
(C) the percentage determined by dividing the taxpayer's originating
revenue within the city for such period by its total originating revenue
within and without the city for such period.
(ii) As used herein the term "aircraft arrivals and departures" means
the number of landings and takeoffs of the aircraft of the taxpayer and
the number of air pickups and deliveries by the aircraft of such taxpay-
er; the term "originating revenue" means revenue to the taxpayer from
A. 10030 651
the transportation of revenue passengers and revenue property first
received by the taxpayer either as originating or connecting traffic at
airports; and the term "revenue tons handled by the taxpayer at
airports" means the weight in tons of revenue passengers, at two hundred
pounds per passenger, and revenue cargo first received either as origi-
nating or connecting traffic or finally discharged by the taxpayer at
airports.
(2) All such receipts of a taxpayer from aviation services described
in this paragraph shall be included in the denominator of the receipts
fraction.
(3) A corporation is a qualified air freight forwarder with respect to
another corporation:
(i) if it owns or controls either directly or indirectly all of the
capital stock of such other corporation, or if all of its capital stock
is owned or controlled either directly or indirectly by such other
corporation, or if all of the capital stock of both corporations is
owned or controlled either directly or indirectly by the same interests;
(ii) if it is principally engaged in the business of air freight
forwarding; and
(iii) if its air freight forwarding business is carried on principally
with the airline or airlines operated by such other corporation.
8. (a) The amount of receipts from sales of advertising in newspapers
or periodicals included in the numerator of the receipts fraction shall
be determined by multiplying the total of such receipts by a fraction,
the numerator of which shall be the number of newspapers and periodicals
delivered to points within the city and the denominator of which shall
be the number of newspapers and periodicals delivered to points within
and without the city. The total of such receipts from sales of advertis-
ing in newspapers or periodicals shall be included in the denominator of
the receipts fraction.
(b) The amount of receipts from sales of advertising on television or
radio included in the numerator of the receipts fraction shall be deter-
mined by multiplying the total of such receipts by a fraction, the
numerator of which shall be the number of viewers or listeners within
the city and the denominator of which shall be the number of viewers or
listeners within and without the city. The total of such receipts from
sales of advertising on television or radio shall be included in the
denominator of the receipts fraction.
(c) The amount of receipts from sales of advertising not described in
paragraph (a) or (b) of this subdivision that is furnished, provided or
delivered to, or accessed by the viewer or listener through the use of
wire, cable, fiber-optic, laser, microwave, radio wave, satellite or
similar successor media or any combination thereof, included in the
numerator of the receipts fraction shall be determined by multiplying
the total of such receipts by a fraction, the numerator of which shall
be the number of viewers or listeners within the city and the denomina-
tor of which shall be the number of viewers or listeners within and
without the city. The total of such receipts from sales of advertising
described in this paragraph shall be included in the denominator of the
receipts fraction.
9. Receipts from the transportation or transmission of gas through
pipes shall be included in the numerator of the receipts fraction as
follows. The amount of receipts from the transportation or transmission
of gas through pipes included in the numerator of the receipts fraction
shall be determined by multiplying the total amount of such receipts by
a fraction, the numerator of which shall be the taxpayer's transporta-
A. 10030 652
tion units within the city and the denominator of which shall be the
taxpayer's transportation units within and without the city. A transpor-
tation unit is the transportation of one cubic foot of gas over a
distance of one mile. The total amount of receipts from the transporta-
tion or transmission of gas through pipes shall be included in the
denominator of the receipts fraction.
10. (a) Receipts from services not addressed in subdivisions one
through nine or subdivision twelve of this section and other business
receipts not addressed in such subdivisions shall be included in the
numerator of the receipts fraction if the location of the customer is
within the city. Such receipts from customers within and without the
city shall be included in the denominator of the receipts fraction.
Whether the receipts are included in the numerator of the receipts frac-
tion shall be determined according to the hierarchy of methods set forth
in paragraph (b) of this subdivision. The taxpayer must exercise due
diligence under each method described in such paragraph before rejecting
it and proceeding to the next method in the hierarchy, and must base its
determination on information known to the taxpayer or information that
would be known to the taxpayer upon reasonable inquiry.
(b) The hierarchy of methods is as follows: (1) the benefit is
received in the city; (2) delivery destination; (3) the receipts frac-
tion for such receipts within the city determined pursuant to this
subdivision for the preceding taxable year; or (4) the receipts fraction
in the current taxable year determined pursuant to this subdivision for
those receipts that can be sourced using the hierarchy of sourcing meth-
ods in subparagraphs one and two of this paragraph.
11. If it shall appear that the receipts fraction determined pursuant
to this section does not result in a proper reflection of the taxpayer's
business income or capital within the city, the commissioner of finance
is authorized in his or her discretion to adjust it, or the taxpayer may
request that the commissioner of finance adjust it, by (a) excluding one
or more items in such determination, (b) including one or more other
items in such determination, or (c) any other similar or different meth-
od calculated to effect a fair and proper allocation of the business
income and capital reasonably attributed to the city. The party seeking
the adjustment shall bear the burden of proof to demonstrate that the
receipts fraction determined pursuant to this section does not result in
a proper reflection of the taxpayer's business income or capital within
the city and that the proposed adjustment is appropriate.
12. Receipts from the operation of vessels shall be included in the
numerator of the receipts fraction as follows. The amount of receipts
from the operation of vessels included in the numerator of the receipts
fraction shall be determined by multiplying the amount of such receipts
by a fraction, the numerator of which shall be the aggregate number of
working days of the vessels owned or leased by the taxpayer in territo-
rial waters of the city during the period covered by the taxpayer's
report and the denominator of which shall be the aggregate number of
working days of all vessels owned or leased by the taxpayer during such
period. Receipts from the operation of vessels shall be included in the
denominator of the receipts fraction.
§ 11-654.3 Combined reports. 1. (a) The tax on a combined report shall
be the highest of (1) the combined business income multiplied by the tax
rate specified in clause (i) of subparagraph one of paragraph (e) of
subdivision one of section 11-654 of this subchapter; (2) the combined
capital multiplied by the tax rate specified in clause (ii) of subpara-
graph one of paragraph (e) of subdivision one of section 11-654 of this
A. 10030 653
subchapter, but not exceeding the limitation provided for in such clause
(ii); or (3) the fixed dollar minimum that is attributable to the desig-
nated agent of the combined group. In addition, the tax on a combined
report shall include the fixed dollar minimum tax specified in clause
(iv) of subparagraph one of paragraph (e) of subdivision one of section
11-654 of this subchapter for each member of the combined group, other
than the designated agent, that is a taxpayer.
(b) The combined business income base is the amount of the combined
business income of the combined group that is allocated to the city,
reduced by any prior net operating loss conversion subtraction and any
net operating loss deduction for the combined group. The combined capi-
tal base is the amount of the combined capital of the combined group
that is allocated to the city.
2. (a) Except as provided in paragraph (c) of this subdivision, any
taxpayer (1) which owns or controls either directly or indirectly more
than fifty percent of the voting power of the capital stock of one or
more other corporations, or (2) more than fifty percent of the voting
power of the capital stock of which is owned or controlled either
directly or indirectly by one or more other corporations, or (3) more
than fifty percent of the voting power of the capital stock of which and
the capital stock of one or more other corporations, is owned or
controlled, directly or indirectly, by the same interests, and (4) that
is engaged in a unitary business with those corporations, hereinafter
referred to as "related corporations", shall make a combined report with
those other corporations.
(b) A corporation required to make a combined report within the mean-
ing of this section shall also include (1) a captive REIT and a captive
RIC; (2) a combinable captive insurance company; and (3) an alien corpo-
ration that satisfies the conditions in paragraph (a) of this subdivi-
sion if (i) under any provision of the internal revenue code, that
corporation is treated as a "domestic corporation" as defined in section
seven thousand seven hundred one of the internal revenue code, or (ii)
it has effectively connected income for the taxable year pursuant to
clause (iii) of the opening paragraph of subdivision eight of section
11-652 of this subchapter.
(c) A corporation required or permitted to make a combined report
under this section does not include (1) a corporation that is taxable
under a tax imposed by subchapter two or three of this chapter or chap-
ter eleven of this title, except for a vendor of utility services that
is taxable under both chapter eleven of this title and this subchapter,
or would be taxable under a tax imposed by subchapter two or three of
this chapter or chapter eleven of this title, except for a vendor of
utility services that is taxable under both chapter eleven of this title
and this subchapter, or would have been taxable as an insurance corpo-
ration under the former part IV, title R, chapter forty-six of the
administrative code as in effect on June thirtieth, nineteen hundred
seventy-four; (2) a REIT that is not a captive REIT, and a RIC that is
not a captive RIC; or (3) an alien corporation that under any provision
of the internal revenue code is not treated as a "domestic corporation"
as defined in section seven thousand seven hundred one of such code and
has no effectively connected income for the taxable year pursuant to
clause (iii) of the opening paragraph of subdivision eight of section
11-652 of this subchapter. If a corporation is subject to tax under this
subchapter solely as a result of its ownership of a limited partner
interest in a limited partnership that is doing business, employing
capital, owning or leasing property, or maintaining an office in this
A. 10030 654
city, and none of the corporation's related corporations are subject to
tax under this subchapter, such corporation shall not be required or
permitted to file a combined report under this section with such related
corporations.
(d) A combined report shall be filed by the designated agent of the
combined group as determined under subdivision seven of this section.
3. (a) Subject to the provisions of paragraph (c) of subdivision two
of this section, a taxpayer may elect to treat as its combined group all
corporations that meet the ownership requirements described in paragraph
(a) of subdivision two of this section, such corporations collectively
referred to in this subdivision as the "commonly owned group". If that
election is made, the commonly owned group shall calculate the combined
business income, combined business capital, and fixed dollar minimum
amount of all members of the group in accordance with paragraph four of
this subdivision, whether or not that business income or business capi-
tal is from a single unitary business.
(b) The election under this subdivision shall be made on an original,
timely filed return, determined with regard to extensions, of the
combined group. Any corporation entering a commonly owned group subse-
quent to the year of election shall be included in the combined group
and is considered to have waived any objection to its inclusion in the
combined group.
(c) The election shall be irrevocable, and binding for and applicable
to the taxable year for which it is made and for the next six taxable
years. The election will automatically be renewed for another seven
taxable years after it has been in effect for seven taxable years unless
it is affirmatively revoked. The revocation shall be made on an
original, timely filed return, determined with regard to extensions, for
the first taxable year after the completion of a seven year period for
which an election under this subdivision was in place. In the case of a
revocation, a new election under this subdivision shall not be permitted
in any of the immediately following three taxable years. In determining
the seven and three year periods described in this paragraph, short
taxable years shall not be considered or counted.
4. (a) In computing the tax bases for a combined report, the combined
group shall generally be treated as a single corporation, except as
otherwise provided, and subject to any regulations or guidance issued by
the commissioner of finance or the department of finance.
(b)(1) In computing combined business income, all intercorporate divi-
dends shall be eliminated, and all other intercorporate transactions
shall be deferred in a manner similar to the United States treasury
department regulations relating to intercompany transactions under
section fifteen hundred two of the internal revenue code.
(2) In computing combined capital, all intercorporate stockholdings,
intercorporate bills, intercorporate notes receivable and payable,
intercorporate accounts receivable and payable, and other intercorporate
indebtedness, shall be eliminated.
(c) Qualification for credits, including any limitations thereon,
shall be determined separately for each of the members of the combined
group, and shall not be determined on a combined group basis, except as
otherwise provided. However, the credits shall be applied against the
combined tax of the group. To the extent that a provision of section
11-654 of this subchapter, or any other applicable section of this
subchapter, limits a credit to the fixed dollar minimum amount
prescribed in clause (iv) of subparagraph one of paragraph (e) of subdi-
vision one of section 11-654 of this subchapter, such fixed dollar mini-
A. 10030 655
mum amount shall be the fixed dollar minimum amount that is attributable
to the designated agent of the combined group.
(d)(1) A net operating loss deduction is allowed in computing the
combined business income base. Such deduction may reduce the tax on the
combined business income base to the higher of the tax on the combined
capital or the fixed dollar minimum amount that is attributable to the
designated agent of the combined group. A combined net operating loss
deduction is equal to the amount of combined net operating loss or loss-
es from one or more taxable years that are carried forward or carried
back to a particular taxable year. A combined net operating loss is the
combined business loss incurred in a particular taxable year multiplied
by the combined business allocation percentage for that year determined
as provided in subdivision five of this section.
(2) The combined net operating loss deduction and combined net operat-
ing loss are also subject to the provisions contained in paragraphs (a)
through (g) of subdivision three of section 11-654.1 of this subchapter.
(3) In the case of a corporation that files a combined report, either
in the year the net operating loss is incurred or in the year in which a
deduction is claimed on account of the loss, the combined net operating
loss deduction is determined as if the combined group is a single corpo-
ration and, to the extent possible and not otherwise inconsistent with
this subdivision, is subject to the same limitations that would apply
for federal income tax purposes under the internal revenue code and the
code of federal regulations as if such corporation had filed for such
taxable year a consolidated federal income tax return with the same
corporations included in the combined report. If a corporation files a
combined report, regardless of whether it filed a separate return or
consolidated return for federal income tax purposes, the net operating
loss and net operating loss deduction for the combined group must be
computed as if the corporation had filed a consolidated return for the
same corporations for federal income tax purposes.
(4) In general, any net operating loss carryover from a year in which
a combined report was filed shall be based on the combined net operating
loss of the group of corporations filing such report. The portion of the
combined loss attributable to any member of the group that files a sepa-
rate report for a succeeding taxable year will be an amount bearing the
same relation to the combined loss as the net operating loss of such
corporation bears to the total net operating loss of all members of the
group having such losses to the extent that they are taken into account
in computing the combined net operating loss.
(d-1) A prior net operating loss conversion subtraction is allowed in
computing the combined business income base, as provided in subdivisions
one and two of section 11-654.1 of this subchapter. Such subtraction may
reduce the tax on combined business income to the higher of the tax on
combined capital or the fixed dollar minimum amount that is attributable
to the designated agent of the combined group.
(e)(i) Any election made pursuant to paragraph (b) of subdivision
five, paragraphs (b) and (c) of subdivision five-a of section 11-652 of
this subchapter, and paragraph (g) of subdivision three of section
11-654.1 of this subchapter shall apply to all members of the combined
group.
(ii) The determination of whether or not the limitation on investment
income provided in subparagraph (iii) of paragraph (a) of subdivision
five of section 11-652 of this subchapter to the combined group shall be
based on the investment income of the combined group, determined without
A. 10030 656
regard to interest expenses attributable to investment capital or
investment income, and the entire net income of the combined group.
(f)(1) In the case of a captive REIT or captive RIC required under
this section to be included in a combined report, entire net income
shall be computed as required under subdivision seven, in the case of a
captive REIT, or subdivision eight, in the case of a captive RIC, of
section 11-653 of this subchapter. However, the deduction under the
internal revenue code for dividends paid by the captive REIT or captive
RIC to any member of the affiliated group that includes the corporation
that directly or indirectly owns over fifty percent of the voting stock
of the captive REIT or captive RIC shall not be allowed. For purposes of
this subparagraph, the term "affiliated group" means "affiliated group"
as defined in section fifteen hundred four of the internal revenue code,
but without regard to the exceptions provided for in subsection (b) of
that section.
(2) In the case of a combinable captive insurance company required
under this section to be included in a combined report, entire net
income shall be computed as required by subdivision eight of section
11-652 of this subchapter.
(g) If more than one member of a combined group is eligible for any of
the modifications described in paragraphs (q), (r) or (s) of subdivision
eight of section 11-652 of this subchapter, all such members must
utilize the same modification.
5. (a) In determining the business allocation percentage for a
combined report, the receipts, net income, net gains and other items of
each member of the combined group, whether or not they are a taxpayer,
are included and intercorporate receipts, income and gains are elimi-
nated. Receipts, net income, net gains and other items are sourced, and
the amounts allowed in the receipts fraction are determined, as provided
in section 11-654.2 of this subchapter.
(b) An election made to allocate income and gains from qualifying
financial instruments pursuant to subparagraph one of paragraph (a) of
subdivision five of section 11-654.2 of this subchapter shall apply to
all members of the combined group.
6. Every member of the combined group that is subject to tax under
this article shall be jointly and severally liable for the tax due
pursuant to a combined report.
7. Each combined group shall appoint a designated agent for the
combined group, which shall be a taxpayer. Only the designated agent may
act on behalf of the members of the combined group for matters relating
to the combined report.
§ 11-655 Reports. 1. Every corporation having an officer, agent or
representative within the city, shall annually on or before March
fifteenth for taxable years beginning before January first, two thousand
sixteen, and annually on or before April fifteenth for taxable years
beginning on or after January first, two thousand sixteen, transmit to
the commissioner of finance a report in a form prescribed by the commis-
sioner of finance, setting forth such information as the commissioner of
finance may prescribe, except that a corporation that reports on the
basis of a fiscal year shall transmit such report, for taxable years
beginning before January first, two thousand sixteen, within two and
one-half months after the close of its fiscal year, and, for taxable
years beginning after January first, two thousand sixteen, within three
and one-half months after the close of its fiscal year. Every taxpayer
that ceases to do business in the city or to be subject to the tax
imposed by this subchapter shall transmit to the commissioner of finance
A. 10030 657
a report on the date of such cessation or at such other time as the
commissioner of finance may require covering each year or period for
which no report was theretofore filed. Every taxpayer shall also trans-
mit such other reports and such facts and information as the commission-
er of finance may require in the administration of this subchapter. The
commissioner of finance may grant a reasonable extension of time for
filing reports whenever good cause exists.
An automatic extension of six months for the filing of its annual
report shall be allowed any taxpayer if, within the time prescribed by
the opening paragraph of this subdivision, whichever is applicable, such
taxpayer files with the commissioner of finance an application for
extension in such form as the commissioner of finance may prescribe by
regulation and pays on or before the date of such filing the amount
properly estimated as its tax.
2. Every report shall have annexed thereto a certification by the
president, vice-president, treasurer, assistant treasurer, chief
accounting officer or another officer of the taxpayer duly authorized so
to act to the effect that the statements contained therein are true. In
the case of an association, within the meaning of paragraph three of
section (a) of section seventy-seven hundred one of the internal revenue
code, a publicly-traded partnership treated as a corporation for
purposes of the internal revenue code pursuant to section seventy-seven
hundred four thereof and any business conducted by a trustee or trustees
wherein interest or ownership is evidenced by certificates or other
written instruments, such certification shall be made by any person duly
authorized so to act on behalf of such association, publicly-traded
partnership or business. The fact that an individual's name is signed on
a certification of the report shall be prima facie evidence that such
individual is authorized to sign and certify the report on behalf of the
corporation. Blank forms of reports shall be furnished by the commis-
sioner of finance, on application, but failure to secure such a blank
shall not release any corporation from the obligation of making any
report required by this subchapter.
2-a. The commissioner of finance may prescribe regulations and
instructions requiring returns of information to be made and filed in
conjunction with the reports required to be filed pursuant to this
section, relating to payments made to shareholders owning, directly or
indirectly, individually or in the aggregate, more than fifty percent of
the issued capital stock of the taxpayer, where such payments are treat-
ed as payments of interest in the computation of entire net income
reported on such reports.
3. If the amount of taxable income or other basis of tax for any year
of any taxpayer as returned to the United States treasury department or
the New York state commissioner of taxation and finance is changed or
corrected by the commissioner of internal revenue or other officer of
the United States or the New York state commissioner of taxation and
finance or other competent authority, or where a renegotiation of a
contract or subcontract with the United States or the state of New York
results in a change in taxable income or other basis of tax, or where a
recovery of a war loss results in a computation or recomputation of any
tax imposed by the United States or the state of New York, or if a
taxpayer, pursuant to subsection (d) of section sixty-two hundred thir-
teen of the internal revenue code, executes a notice of waiver of the
restrictions provided in subsection (a) of said section, or if a taxpay-
er, pursuant to subsection (f) of section one thousand eighty-one of the
tax law, executes a notice of waiver of the restrictions provided in
A. 10030 658
subsection (c) of said section, such taxpayer shall report such changed
or corrected taxable income or other basis of tax, or the results of
such renegotiation, or such computation, or recomputation, or such
execution of such notice of waiver and the changes or corrections of the
taxpayer's federal or New York state taxable income or other basis of
tax on which it is based, within ninety days, or one hundred twenty
days, in the case of a taxpayer making a combined report under this
subchapter for such year, after such execution or the final determi-
nation of such change or correction or renegotiation, or such computa-
tion, or recomputation, or as required by the commissioner of finance,
and shall concede the accuracy of such determination or state wherein it
is erroneous. The allowance of a tentative carryback adjustment based
upon a net operating loss carryback or net capital loss carryback pursu-
ant to section sixty-four hundred eleven of the internal revenue code
shall be treated as a final determination for purposes of this subdivi-
sion. Any taxpayer filing an amended return with such department shall
also file within ninety days, or one hundred twenty days, in the case of
a taxpayer making a combined report under this subchapter for such year,
thereafter an amended report with the commissioner of finance.
4. The provisions of section 11-654.3 of this subchapter shall apply
to combined reports.
5. In case it shall appear to the commissioner of finance that any
agreement, understanding or arrangement exists between the taxpayer and
any other corporation or any person or firm, whereby the activity, busi-
ness, income or capital of the taxpayer within the city is improperly or
inaccurately reflected, the commissioner of finance is authorized and
empowered, in its discretion and in such manner as it may determine, to
adjust items of income, deductions and capital, and to eliminate assets
in computing any allocation percentage provided only that any income
directly traceable thereto be also excluded from entire net income, so
as equitably to determine the tax. Where (a) any taxpayer conducts its
activity or business under any agreement, arrangement or understanding
in such manner as either directly or indirectly to benefit its members
or stockholders, or any of them, or any person or persons directly or
indirectly interested in such activity or business, by entering into any
transaction at more or less than a fair price which, but for such agree-
ment, arrangement or understanding, might have been paid or received
therefor, or (b) any taxpayer, a substantial portion of whose capital
stock is owned either directly or indirectly by another corporation,
enters into any transaction with such other corporation on such terms as
to create an improper loss or net income, the commissioner of finance
may include in the entire net income of the taxpayer the fair profits,
which, but for such agreement, arrangement or understanding, the taxpay-
er might have derived from such transaction. Where any taxpayer owns,
directly or indirectly, more than fifty percent of the capital stock of
another corporation subject to tax under section fifteen hundred two-a
of the tax law and fifty percent or less of whose gross receipts for the
taxable year consist of premiums, the commissioner of finance may
include in the entire net income of the taxpayer, as a deemed distrib-
ution, the amount of the net income of the other corporation that is in
excess of its net premium income.
6. An action may be brought at any time by the corporation counsel at
the instance of the commissioner of finance to compel the filing of
reports due under this subchapter.
7. Reports shall be preserved for five years, and thereafter until the
commissioner of finance orders them to be destroyed.
A. 10030 659
8. Where the New York state commissioner of taxation and finance
changes or corrects a taxpayer's sales and compensating use tax liabil-
ity with respect to the purchase or use of items for which a sales or
compensating use tax credit against the tax imposed by this subchapter
was claimed, the taxpayer shall report such change or correction to the
commissioner of finance within ninety days of the final determination of
such change or correction, or as required by the commissioner of
finance, and shall concede the accuracy of such determination or state
wherein it is erroneous. Any taxpayer filing an amended return or report
relating to the purchase or use of such items shall also file within
ninety days thereafter a copy of such amended return or report with the
commissioner of finance.
§ 11-656 Payment and lien of tax. 1. To the extent the tax imposed by
section 11-653 of this subchapter shall not have been previously paid
pursuant to section 11-658 of this subchapter:
(a) such tax, or the balance thereof, shall be payable to the commis-
sioner of finance in full at the time the report is required to be
filed; and
(b) such tax, or the balance thereof, imposed on any taxpayer which
ceases to do business in the city or to be subject to the tax imposed by
this subchapter shall be payable to the commissioner of finance at the
time the report is required to be filed; all other taxes of any such
taxpayer, which pursuant to the this subdivision would otherwise be
payable subsequent to the time such report is required to be filed,
shall nevertheless be payable at such time. If the taxpayer, within the
time prescribed by section 11-655 of this subchapter, shall have applied
for an automatic extension of time to file its annual report and shall
have paid to the commissioner of finance on or before the date such
application is filed an amount properly estimated as provided by said
section, the only amount payable in addition to the tax shall be inter-
est at the underpayment rate set by the commissioner of finance pursuant
to section 11-687 of this chapter, or, if no rate is set, at the rate of
seven and one-half percent per annum upon the amount by which the tax,
or the portion thereof payable on or before the date the report was
required to be filed, exceeds the amount so paid, provided that:
(1) an amount so paid shall be deemed properly estimated if it is
either: (i) not less than ninety percent of the tax as finally deter-
mined, or (ii) not less than the tax shown on the taxpayer's report for
the preceding taxable year, if such preceding year was a taxable year of
twelve months; and
(2) the time when a report is required to be filed shall be determined
without regard to any extension of time for filing such report.
2. The commissioner of finance may grant a reasonable extension of
time for payment of any tax imposed by this subchapter under such condi-
tions as the commissioner of finance deems just and proper.
3. Intentionally omitted.
§ 11-657 Declaration of estimated tax. 1. Every taxpayer subject to
the tax imposed by section 11-653 of this subchapter shall make a decla-
ration of its estimated tax for the current privilege period, containing
such information as the commissioner of finance may prescribe by regu-
lations or instructions, if such estimated tax can reasonably be
expected to exceed one thousand dollars.
2. The term "estimated tax" means the amount which a taxpayer esti-
mates to be the tax imposed by section 11-653 of this subchapter for the
current privilege period, less the amount which it estimates to be the
sum of any credits allowable against the tax.
A. 10030 660
3. In the case of a taxpayer which reports on the basis of a calendar
year, a declaration of estimated tax shall be filed on or before June
fifteenth of the current privilege period, except that if the require-
ments of subdivision one of this section are first met:
(a) after May thirty-first and before September first of such current
privilege period, the declaration shall be filed on or before September
fifteenth; or
(b) after August thirty-first and before December first of such
current privilege period, the declaration shall be filed on or before
December fifteenth.
4. A taxpayer may amend a declaration under regulations of the commis-
sioner of finance.
5. If, on or before February fifteenth of the succeeding year in the
case of a taxpayer which reports on the basis of a calendar year, a
taxpayer files its report for the year for which the declaration is
required, and pays therewith the balance, if any, of the full amount of
the tax shown to be due on the report:
(a) such report shall be considered as its declaration if no declara-
tion is required to be filed during the calendar or fiscal year for
which the tax was imposed, but is otherwise required to be filed on or
before December fifteenth pursuant to subdivision three of this section;
and
(b) such report shall be considered as the amendment permitted by
subdivision four of this section to be filed on or before December
fifteenth if the tax shown on the report is greater than the estimated
tax shown on a declaration previously made.
6. This section shall apply to privilege periods of twelve months
other than a calendar year by the substitution of the months of such
fiscal year for the corresponding months specified in this section.
7. If the privilege period for which a tax is imposed by section
11-653 of this subchapter is less than twelve months, every taxpayer
required to make a declaration of estimated tax for such privilege peri-
od shall make such a declaration in accordance with regulations of the
commissioner of finance.
8. The commissioner of finance may grant a reasonable extension of
time, not to exceed three months, for the filing of any declaration
required pursuant to this section, on such terms and conditions as it
may require.
§ 11-658 Payments on account of estimated tax. 1. For taxable years
beginning before January first, two thousand sixteen, every taxpayer
subject to the tax imposed by section 11-653 of this subchapter shall
pay with the report required to be filed for the preceding privilege
period, if any, or with an application for extension of the time and
filing such report, an amount equal to twenty-five per centum of the
preceding year's tax if such preceding year's tax exceeded one thousand
dollars. For taxable years beginning on or after January first, two
thousand sixteen, every taxpayer subject to the tax imposed by section
11-653 of this subchapter shall pay on or before the fifteenth day of
March next succeeding the close of each such calendar year, or, in the
case of a taxpayer that reports on the basis of a fiscal year, within
two and one-half months after the close of each such fiscal year an
amount equal to twenty-five per centum of the second preceding year's
tax if the second preceding year's tax exceeded one thousand dollars.
2. The estimated tax with respect to which a declaration for such
privilege period is required shall be paid, in the case of a taxpayer
which reports on the basis of a calendar year, as follows:
A. 10030 661
(a) If the declaration is filed on or before June fifteenth, the esti-
mated tax shown thereon, after applying thereto the amount, if any, paid
during the same privilege period pursuant to subdivision one of this
section, shall be paid in three equal installments. One of such install-
ments shall be paid at the time of the filing of the declaration, one
shall be paid on the following September fifteenth, and one on the
following December fifteenth.
(b) If the declaration is filed after June fifteenth and not after
September fifteenth of such privilege period, and is not required to be
filed on or before June fifteenth of such period, the estimated tax
shown on such declaration, after applying thereto the amount, if any,
paid during the same privilege period pursuant to subdivision one of
this section, shall be paid in two equal installments. One of such
installments shall be paid at the time of the filing of the declaration
and one shall be paid on the following December fifteenth.
(c) If the declaration is filed after September fifteenth of such
privilege period, and is not required to be filed on or before September
fifteenth of such privilege period, the estimated tax shown on such
declaration, after applying thereto the amount, if any, paid in respect
to such privilege period pursuant to subdivision one of this section,
shall be paid in full at the time of the filing of the declaration.
(d) If the declaration is filed after the time prescribed therefor, or
after the expiration of any extension of time therefor, paragraphs (b)
and (c) of this subdivision shall not apply, and there shall be paid at
the time of such filing all installments of estimated tax payable at or
before such time, and the remaining installments shall be paid at the
times at which, and in the amounts in which, they would have been paya-
ble if the declaration had been filed when due.
3. If any amendment of a declaration is filed, the remaining install-
ments, if any, shall be ratably increased or decreased, as the case may
be, to reflect any increase or decrease in the estimated tax by reason
of such amendment, and if any amendment is made after September
fifteenth of the privilege period, any increase in the estimated tax by
reason thereof shall be paid at the time of making such amendment.
4. Any amount paid shall be applied after payment as a first install-
ment against the estimated tax of the taxpayer for the current privilege
period shown on the declaration required to be filed pursuant to section
11-657 of this subchapter or, if no declaration of estimated tax is
required to be filed by the taxpayer pursuant to such section, any such
amount shall be considered a payment on account of the tax shown on the
report required to be filed by the taxpayer for such privilege period.
5. Notwithstanding the provisions of section 11-679 of this chapter or
of section three-a of the general municipal law, if an amount paid
pursuant to subdivision one of this section exceeds the tax shown on the
report required to be filed by the taxpayer for the privilege period
during which the amount was paid, interest shall be allowed and paid on
the amount by which the amount so paid pursuant to such subdivision
exceeds such tax, at the overpayment rate set by the commissioner of
finance pursuant to section 11-687 of this chapter, or, if no rate is
set, at the rate of four percent per annum from the date of payment of
the amount so paid pursuant to such subdivision to the fifteenth day of
the third month following the close of the privilege period, provided,
however, that no interest shall be allowed or paid under this subdivi-
sion if the amount thereof is less than one dollar or if such interest
becomes payable solely because of a carryback of a net operating loss in
a subsequent privilege period.
A. 10030 662
6. As used in this section, "the preceding year's tax" means the tax
imposed upon the taxpayer by section 11-653 of this subchapter for the
preceding calendar or fiscal year, or, for purposes of computing the
first installment of estimated tax when either the mandatory first
installment is paid pursuant to subdivision one of this section or an
application has been filed for extension of the time for filing the
report required to be filed for such preceding calendar or fiscal year,
the amount properly estimated pursuant to section 11-657 of this
subchapter as the tax imposed upon the taxpayer for such calendar or
fiscal year. As used in this section, "the second preceding year's tax"
means the tax imposed upon the taxpayer by section 11-653 of this
subchapter for the second preceding calendar of fiscal year.
7. This section shall apply to a privilege period of less than twelve
months in accordance with regulations of the commissioner of finance.
8. The provisions of this section shall apply to privilege periods of
twelve months other than a calendar year by the substitution of the
months of such fiscal year for the corresponding months specified in
such provisions.
9. The commissioner of finance may grant a reasonable extension of
time, not to exceed six months, for payment of any installment of esti-
mated tax required pursuant to this section, on such terms and condi-
tions as the commissioner of finance may require including the furnish-
ing of a bond or other security by the taxpayer in an amount not
exceeding twice the amount for which any extension of time for payment
is granted, provided, however, that interest at the underpayment rate
set by the commissioner of finance pursuant to section 11-687 of this
subchapter, or, if no rate is set, at the rate of seven and one-half
percent per annum for the period of the extension shall be charged and
collected on the amount for which any extension of time for payment is
granted under this subdivision.
10. A taxpayer may elect to pay any installment of estimated tax prior
to the date prescribed in this section for payment thereof.
11. Intentionally omitted.
§ 11-659 Collection of taxes. Every foreign corporation, other than a
moneyed corporation, subject to the provisions of this subchapter,
except a corporation having authority to do business by virtue of
section thirteen hundred five of the business corporation law, shall
file in the department of state a certificate of designation in its
corporate name, signed and acknowledged by its president or a vice-pre-
sident or its secretary or treasurer, under its corporate seal, desig-
nating the secretary of state as its agent upon whom process in any
action provided for by this subchapter may be served within this state,
and setting forth an address to which the secretary of state shall mail
a copy of any such process against the corporation which may be served
upon the secretary of state. In case any such corporation shall have
failed to file such certificate of designation, it shall be deemed to
have designated the secretary of state as its agent upon whom such proc-
ess against it may be served; and until a certificate of designation
shall have been filed the corporation shall be deemed to have directed
the secretary of state to mail copies of process served upon him or her
to the corporation at its last known office address within or without
the state. When a certificate of designation has been filed by such
corporation the secretary of state shall mail copies of process there-
after served upon the secretary of state to the address set forth in
such certificate. Any such corporation, from time to time, may change
the address to which the secretary of state is directed to mail copies
A. 10030 663
of process, by filing a certificate to that effect executed, signed and
acknowledged in like manner as a certificate of designation as herein
provided. Service of process upon any such corporation or upon any
corporation having a certificate of authority under section eight
hundred five of the limited liability company law or having authority to
do business by virtue of section thirteen hundred five of the business
corporation law, in any action commenced at any time pursuant to the
provisions of this subchapter, may be made by either: (a) personally
delivering to and leaving with the secretary of state, a deputy secre-
tary of state or with any person authorized by the secretary of state to
receive such service duplicate copies thereof at the office of the
department of state in the city of Albany, in which event the secretary
of state shall forthwith send by registered mail, return receipt
requested, one of such copies to the corporation at the address desig-
nated by it or at its last known office address within or without the
state, or (b) personally delivering to and leaving with the secretary of
state, a deputy secretary of state or with any person authorized by the
secretary of state to receive such service, a copy thereof at the office
of the department of state in the city of Albany and by delivering a
copy thereof to, and leaving such copy with, the president, vice-presi-
dent, secretary, assistant secretary, treasurer, assistant treasurer, or
cashier of such corporation, or the officer performing corresponding
functions under another name, or a director or managing agent of such
corporation, personally without the state. Proof of such personal
service without the state shall be filed with the clerk of the court in
which the action is pending within thirty days after such service, and
such service shall be complete ten days after proof thereof is filed.
§ 11-660 Limitations of time. The provisions of the civil practice law
and rules relative to the limitation of time enforcing a civil remedy
shall not apply to any proceeding or action taken to levy, appraise,
assess, determine or enforce the collection of any tax or penalty
prescribed by this subchapter, provided, however, that as to real estate
in the hands of persons who are owners thereof who would be purchasers
in good faith but for such tax or penalty and as to the lien on real
estate of mortgages held by persons who would be holders thereof in good
faith but for such tax or penalty, all such taxes and penalties shall
cease to be a lien on such real estate as against such purchasers or
holders after the expiration of ten years from the date such taxes
became due and payable. The limitations herein provided for shall not
apply to any transfer from a corporation to a person or corporation with
intent to avoid payment of any taxes, or where with like intent the
transfer is made to a grantee corporation, or any subsequent grantee
corporation, controlled by such grantor or which has any community of
interest with it, either through stock ownership or otherwise.
SUBCHAPTER 4
TRANSPORTATION CORPORATION TAX
§ 11-662 Tax on transportation corporations and associations. 1.
The term "corporation" as used in this subchapter shall include any
business conducted by a trustee or trustees wherein interest or owner-
ship is evidenced by certificates or other written instruments.
2. For the privilege of doing business or holding property in the
city every corporation, joint-stock company or association formed for or
principally engaged in the conduct of aviation, steamboat, ferry, except
a ferry company operating between the city of Staten Island and any of
A. 10030 664
the boroughs of the city of New York under a lease granted by the city
of New York, or navigation business, or formed for or principally
engaged in the conduct of two or more of such businesses, except a
corporation, joint-stock company or association subject to taxation
under chapter eleven of this title, shall pay, in advance, an annual tax
to be computed upon the basis of the amount of its capital stock within
the city during the preceding year, and upon each dollar of such amount.
3. The measure of the amount of capital stock in the city, except as
hereinafter provided, shall be such a portion of the issued capital
stock as the gross assets, exclusive of obligations issued by the United
States and cash on hand and on deposit, employed in any business within
the city, bear to the gross assets, exclusive of obligations issued by
the United States and cash on hand and on deposit, wherever employed in
business. Provided, however, that in the case of a corporation taxable
hereunder only for the privilege of holding property, the measure shall
be such a portion of the issued capital stock as the gross assets,
exclusive of obligations issued by the United States and cash on hand
and on deposit, located within the city, bear to the gross assets,
exclusive of obligations issued by the United States and cash on hand
and on deposit, wherever located. The capital of a corporation invested
in the stock of another corporation shall be deemed to be assets located
where the assets of the issuing corporation, other than patents, copy-
rights, trademarks, contracts and good will, are located.
4. Every corporation, joint-stock company or association subject to
taxation under this section shall, in any event, pay annually, for taxa-
ble years ending on or before December thirty-first, nineteen hundred
seventy-four, a minimum tax of not less than ten dollars nor less than
one mill, and for taxable years beginning on or after January first,
nineteen hundred seventy-five, a minimum tax of not less than fifteen
dollars nor less than one and one-half mills, on each dollar of such a
portion of the net value of its issued capital stock, which net value
for the purposes of this section shall be deemed to be not less than
five dollars per share, as may be determined upon such of the bases
herein provided for the measurement thereof as is applicable. The term
"net value" as used in this section shall be construed to mean not less
than the difference between a corporation's assets and liabilities, and
not less than the average price at which such stock sold during the year
covered by the report which forms the basis for the tax. But if the
dividends paid on the par value of any kind of capital stock during any
year ending with the thirty-first day of December amounts to six or more
than six per centum, the tax upon such kind of capital stock shall be at
the rate of one-quarter of a mill for taxable years ending on or before
December thirty-first, nineteen hundred seventy-four, and at the rate of
four-tenths of a mill for taxable years beginning on or after January
first, nineteen hundred seventy-five for each one per centum of divi-
dends paid and shall be computed upon the par value of such capital
stock, unless such a tax be less than the minimum tax hereinbefore
provided in this section and the commissioner of finance shall, for such
purpose, make a fair and equitable apportionment of the assets of the
corporation, joint-stock company or association, between or among the
different kinds of stock.
5. If such corporation, joint-stock company or association shall have
more than one kind of capital stock, and upon one of such kinds of stock
a dividend or dividends amounting to six or more than six per centum
upon the par value thereof, has been paid, and upon the other no divi-
dend has been paid, or the dividend or dividends paid thereon amount to
A. 10030 665
less than six per centum upon the par value thereof, then the tax shall
be fixed upon each kind as hereinbefore provided.
6. The dividend rate for a corporation having stock without nominal or
par value shall be determined by dividing the amount paid as a dividend
or dividends during the year by the amount paid in on such stock and, if
the rate is six per centum or more, then for taxable years ending on or
before December thirty-first, nineteen hundred seventy-four, the rate of
one-quarter of a mill for each one per centum of dividends shall be
applied to the amount paid in on such stock, and for taxable years
beginning on or after January first, nineteen hundred seventy-five, the
rate of four-tenths of a mill for each one per centum of dividends shall
be applied to the amount paid in on such stock, unless such tax be less
than the minimum tax hereinbefore in this section provided for. Any
consideration given by a corporation for the purchase of its own stock
in excess of the consideration received by it for the issuance of such
stock shall for the purposes of this section, be considered as a divi-
dend.
7. The owning or holding in the city by any corporation of property,
other than property exclusively in interstate or foreign commerce, shall
constitute carrying on business within the city within the intent of
this section, except that a corporation having no property in the city
other than a bank balance or stocks or bonds, or one or more of such
kinds of property, either held for safe keeping or pledged as collateral
security shall not be taxable under this section, and further provided
that any corporation having only office furniture or fixtures, a bank
balance, and stocks or bonds pledged as collateral security or merely
deposited for safe keeping, shall not be taxable under this section.
8. The measure of the amount of capital stock in the city of an
aviation corporation shall be a portion of the issued capital stock
determined by applying thereto the arithmetical average of the following
three ratios: (a) the ratio which the aircraft arrivals and departures
within the city scheduled by any such corporation during the preceding
calendar year bear to the total aircraft arrivals and departures within
and without the city scheduled by it during the same period, provided
that in the case of non-scheduled operations all arrivals and departures
shall be substituted for scheduled arrivals and departures; (b) the
ratio which the revenue tons handled by such corporation at airports
within the city during the preceding calendar year bear to the total
revenue tons handled by it at airports within and without the city
during the same period; and (c) the ratio which such corporation's orig-
inating revenue within the city for the preceding calendar years bears
to its total originating revenue within and without the city for the
same period. As used in this section, the term "aircraft arrivals and
departures" means the number of scheduled landings and takeoffs of the
aircraft of an aviation corporation, and the number of scheduled air
pickups and deliveries by the aircraft of such corporation, and in the
case of non-scheduled operations shall include all landings and
takeoffs, pickups and deliveries; the term "originating revenue" means
revenue to any such corporation from the transportation of revenue
passengers and revenue property first received by such corporation
either as originating or connecting traffic at airports; and the term
"revenue tons handled" by any such corporation at an airport means the
weight in tons of revenue passengers, at two hundred pounds per passen-
ger, and revenue cargo first received either as originating or connect-
ing traffic or finally discharged by such corporation at such airport.
A. 10030 666
9. The measure of the capital stock in the city of a corporation
engaged in the operation of vessels in foreign commerce shall be such
portion of the issued capital stock as the aggregate number of working
days in territorial waters of the city of all such vessels bears to the
aggregate number of working days of all such vessels. The dividend rate
for such a corporation shall be determined by dividing the amount paid
as a dividend or dividends on all classes of stock during the year by
the amount of paid-in capital and, if the rate is six per centum or
more, then for taxable years ending on or before December thirty-first,
nineteen hundred seventy-four, the rate of one-quarter of a mill for
each one per centum of dividends shall be applied to the amount of such
paid-in capital, and for taxable years beginning on or after January
first, nineteen hundred seventy-five, the rate of four-tenths of a mill
for each one per centum of dividends shall be applied to the amount of
such paid-in capital.
§ 11-663 Additional tax on transportation corporations and associ-
ations. Every corporation, joint-stock company or association formed
for or principally engaged in the conduct of aviation, steamboat, ferry,
except a ferry company operating between the city of Staten Island and
any of the boroughs of the city of New York under a lease granted by the
city of New York, or navigation business or formed for or principally
engaged in the conduct of two or more of such businesses, except a
corporation, joint-stock company or association subject to taxation
under chapter eleven of this title, shall pay for the privilege of
carrying on its business in the city, a tax which shall be equal to
five-tenths of one per centum for taxable years ending on or before
December thirty-first, nineteen hundred seventy-four, and seventy-five
hundredths of one per centum for taxable years beginning on or after
January first, nineteen hundred seventy-five upon its gross earnings
from all sources within the city, excluding earnings derived from busi-
ness of a character other than wholly intra-city. Provided, however,
gross earnings from transportation business both originating and termi-
nating within the city and traversing both the city and any other city,
any state or states or any country shall be subject to the tax imposed
by this section and such earnings shall be allocated to the city in the
same ratio that the mileage within the city bears to the total mileage
of such business.
§ 11-664 Receivers, etc., conducting corporate business. Any receiv-
er, liquidator, referee, trustee, assignee, or other fiduciary or offi-
cer or agent appointed by any court, who conducts the business of any
corporation, joint-stock company or association shall be subject to the
tax or taxes imposed by this subchapter in the same manner and to the
same extent as if the business were conducted by the agents or officers
of such corporation, joint-stock company or association. A dissolved
corporation, joint-stock company or association which continues to
conduct business shall also be subjected to the tax imposed by this
subchapter.
§ 11-665 Service of process; limitation of time. 1. Every foreign
corporation, other than a moneyed corporation, subject to the provisions
of this subchapter, except a corporation having authority to do business
by virtue of section thirteen hundred five of the business corporation
law, shall file in the department of state a certificate of designation
in its corporate name, signed and acknowledged by its president or vice-
president or its secretary or treasurer, under its corporate seal,
designating the secretary of state as its agent upon whom process in any
action provided for by this subchapter or subchapter five of this chap-
A. 10030 667
ter may be served within this state, and setting forth an address to
which the secretary of state shall mail a copy of any such process
against the corporation which may be served upon the secretary of state.
In case any such corporation shall have failed to file such certificate
of designation, it shall be deemed to have designated the secretary of
state as its agent upon whom such process against it may be served; and
until a certificate of designation shall have been filed the corporation
shall be deemed to have directed the secretary of state to mail copies
of process served upon the secretary of state to the corporation at its
last known office address within or without the state. When a certif-
icate of designation has been filed by such corporation the secretary of
state shall mail copies of process thereafter served upon the secretary
of state to the address set forth in such certificate. Any such corpo-
ration, from time to time, may change the address to which the secretary
of state is directed to mail copies of process, by filing a certificate
to that effect executed, signed and acknowledged in like manner as a
certificate of designation as herein provided. Service of process upon
any such corporation or upon any corporation having authority to do
business by virtue of section thirteen hundred five of the business
corporation law, in any action commenced at any time pursuant to the
provisions of this subchapter or subchapter five of this chapter may be
made by either: (1) personally delivering to and leaving with the secre-
tary of state, a deputy secretary of state or with any person authorized
by the secretary of state to receive such service duplicate copies ther-
eof at the office of the department of state in the city of Albany, in
which event the secretary of state shall forthwith send by registered
mail, return receipt requested, one of such copies to the corporation at
the address designated by it or at its last known office address within
or without the state, or (2) personally delivering to and leaving with
the secretary of state, a deputy secretary of state or with any person
authorized by the secretary of state to receive such service, a copy
thereof at the office of the department of state in the city of Albany
and by delivering a copy hereof to, and leaving such copy with, the
president, vice-president, secretary, assistant secretary, treasurer,
assistant treasurer, or cashier of such corporation, or the officer
performing corresponding functions under another name, or a director or
managing agent of such corporation, personally without the state. Proof
of such personal service without the state shall be filed with the clerk
of the court in which the action is pending within thirty days after
such service, and such service shall be complete ten days after proof
thereof is filed.
2. The provisions of the civil practice law and rules relative to the
limitation of time of enforcing a civil remedy shall not apply to any
proceeding or action taken to levy, appraise, assess, determine or
enforce the collection of any tax or penalty prescribed by this subchap-
ter or subchapter five of this chapter, provided, however, that as to
real estate in the hands of persons who are owners thereof who would be
purchasers in good faith but for such tax or penalty and as to the lien
on real estate of mortgages held by persons who would be holders thereof
in good faith but for such tax or penalty, all such taxes and penalties
shall cease to be a lien on such real estate as against such purchasers
or holders after the expiration of ten years from the date such taxes
become due and payable. The limitations provided for in this subdivi-
sion shall not apply to any transfer from a corporation to a person or
corporation with intent to avoid payment of any taxes, or where with
like intent the transfer is made to a grantee corporation, or any subse-
A. 10030 668
quent grantee corporation controlled by such grantor or which has any
community of interest with it, either through stock ownership or other-
wise.
§ 11-666 Exemption of corporations owned by a municipality. The
provisions of this subchapter shall not apply to any corporation all of
the capital stock of which is owned by a municipal corporation of this
state.
§ 11-667 Reports of corporations. Corporations liable to pay a tax
under this subchapter shall report as follows:
1. Every corporation, association or joint-stock company liable to pay
a tax under section 11-662 of this subchapter shall, on or before March
first in each year, make a written report to the commissioner of finance
of its condition at the close of its business on the preceding December
thirty-first, stating the amount of its authorized capital stock, the
amount of stock paid-in, the date and rate per centum of each dividend
paid by it during the year ending with such day, the entire amount of
the capital of such corporation, and the capital employed by it in the
city during such year.
2. Every corporation, joint-stock company or association liable to pay
an additional tax under section 11-663 of this subchapter shall also, on
or before February fifteenth, May fifteenth, August fifteenth and Novem-
ber fifteenth in each year, make a written report to the commissioner of
finance of the amount of its gross earnings subject to the tax imposed
by said section for the quarter year ended on the last day of the second
month preceding that in which the report is required to be filed. Any
such corporation, joint-stock company or association which ceases to be
subject to the tax imposed by section 11-663 of this subchapter by
reason of a liquidation, dissolution, merger or consolidation with any
other corporation, or any other cause, shall, on the date of such cessa-
tion or at such other time as the commissioner of finance may require,
make a written report to the commissioner of finance of the amount of
its gross earnings subject to the tax imposed by section 11-663 of this
subchapter for any period for which no report was therefor filed.
3. The commissioner of finance may for good cause shown extend the
time within which any corporation is required to report by this subchap-
ter.
4. Every report required by this subchapter shall have annexed thereto
a certification by the president, vice-president, treasurer, assistant
treasurer, or chief accounting officer or any other officer of the
corporation, association or joint-stock company duly authorized so to
act, or of the person or one of the persons, or the members of the part-
nership making the same, to the effect that the statements contained
therein are true. The fact that an individual's name is signed on a
certification attached to a corporate report shall be prima facie
evidence that such individual is authorized to certify the report on
behalf of the corporation. Such reports shall contain any other data,
information or matter which the commissioner of finance may require to
be included therein, and it may prescribe the form in which such reports
shall be made. When so prescribed such forms shall be used in making
the report. The commissioner of finance may require at any time a
further or supplemental report under this subchapter which shall contain
information and data upon such matters as the commissioner of finance
may specify. Reports shall be preserved for five years, and thereafter
until the commissioner of finance orders them to be destroyed.
§ 11-668 Payment of tax and penalties. 1. The taxes imposed by
sections 11-662 and 11-663 of this subchapter shall be due and payable
A. 10030 669
at the time of the filing of the report required by section 11-667 of
this subchapter or, in case such a report is not filed when due, on the
last day specified for the filing thereof, except that the tax upon
dividends imposed by section 11-663 of this subchapter shall be due and
payable at the time of filing the report for the period ending June
thirtieth, or, in case such report is not filed when due, on the last
day specified for the filing thereof.
2. Where an application for consent to dissolution, as provided by
section one thousand four of the business corporation law, is filed with
the commissioner of finance prior to the commencement of any tax year or
period by a corporation subject to tax under this subchapter, such
corporation shall not be liable for any tax imposed by this subchapter
for such following year or period, except as may be otherwise provided
in section 11-664 of this subchapter, provided that the certificate of
dissolution for such corporation is duly filed in the office of the
secretary of state within twenty days after the filing of such applica-
tion.
3. Notwithstanding any other provision of this subchapter, the commis-
sioner of finance may grant a reasonable extension of time for payment
of any tax imposed by this subchapter under such conditions as the
commissioner deems just and proper.
§ 11-669 Taxable years to which taxes apply. The taxes imposed by
this subchapter are imposed for each taxable year or period beginning
with taxable years or periods ending in or with the calendar year nine-
teen hundred sixty-six, provided, however, no tax shall be imposed
pursuant to this subchapter for any taxable year or period ending after
December thirty-first, nineteen hundred eighty-eight.
§ 11-670 First reports for payments for nineteen hundred sixty-six.
If any report under this subchapter is due prior to September eleventh,
nineteen hundred sixty-six, such report and the payments therewith shall
be filed and paid by such date.
SUBCHAPTER 5
CORPORATE TAX PROCEDURE AND ADMINISTRATION
§ 11-671 Application of subchapter. 1. General. The provisions of
this subchapter shall apply to the administration of and the procedures
with respect to the taxes imposed by subchapters two, three, three-A and
four of this chapter.
2. Definitions. As used in this subchapter: (a) the term "named
subchapters" means subchapters two, three, three-A and four of this
chapter;
(b) The term "return" means a report or return of tax, but does not
include a declaration of estimated tax;
(c) The term "corporation" includes a corporation, association, joint-
stock company or other entity subject to tax under any of the named
subchapters; and
(d) The term "person" includes a corporation, association, company,
partnership, estate, trust, liquidator, fiduciary or other entity or
individual liable for the tax imposed by any of the named subchapters or
under a duty to perform an act under any of the named subchapters. Upon
notice to the commissioner of finance that any person is acting for any
corporation in a fiduciary capacity, such fiduciary shall assume the
powers, rights, duties and privileges of such corporation in respect of
a tax imposed by any of the named subchapters, except as otherwise
specifically provided and except that the tax shall be collected from
A. 10030 670
the estate or other assets of such corporation in the hands of such
fiduciary, until notice is given that the fiduciary capacity has termi-
nated.
§ 11-672 Notice of deficiency. 1. General. If upon examination of a
taxpayer's return, the commissioner of finance determines that there is
a deficiency of tax, the commissioner may mail a notice of deficiency to
the taxpayer. If a taxpayer fails to file a tax return, the commissioner
of finance is authorized to estimate the taxpayer's city tax liability
from any information in the commissioner's possession, and to mail a
notice of deficiency to the taxpayer. A notice of deficiency shall be
mailed by certified or registered mail to the taxpayer, at its last
known address in or out of the city. If the taxpayer has terminated its
existence, a notice of deficiency may be mailed to its last known
address in or out of the city, and such notice shall be sufficient for
purposes of this subchapter. If the commissioner of finance has received
notice that a person is acting for the taxpayer in a fiduciary capacity,
a copy of such notice shall also be mailed to the fiduciary named in
such notice.
2. Notice of deficiency as assessment. After ninety days from the
mailing of a notice of deficiency or, if the commissioner of finance has
established a conciliation procedure pursuant to section 11-124 of this
title and the taxpayer has requested a conciliation conference in
accordance therewith, after ninety days from the mailing of the concil-
iation decision or the date of the commissioner's confirmation of the
discontinuance of the conciliation proceeding, such notice shall be an
assessment of the amount of tax specified therein, together with the
interest, additions to tax and penalties stated in such notice, except
only for any such tax or other amounts as to which the taxpayer has
within such ninety day period filed with the tax appeals tribunal a
petition under section 11-680 of this subchapter. If the notice of defi-
ciency or conciliation decision is addressed to a taxpayer whose last
known address is outside of the United States, such period shall be one
hundred fifty days instead of ninety days.
3. Restrictions on assessment and levy. No assessment of a deficiency
in tax and no levy or proceeding in court for its collection shall be
made, begun or prosecuted, except as otherwise provided in section
11-685 of this subchapter, until a notice of deficiency has been mailed
to the taxpayer, nor until the expiration of the time for filing a peti-
tion with the tax appeals tribunal contesting such notice, nor, if a
petition with respect to the taxable year has been both served on the
commissioner of finance and filed with the tax appeals tribunal, until
the decision of the tax appeals tribunal has become final. For excep-
tion in the case of judicial review of the decision of the tax appeals
tribunal, see subdivision three of section 11-681 of this subchapter.
4. Exceptions for mathematical errors. If a mathematical error appears
on a return, including an overstatement of the amount paid as estimated
tax, the commissioner of finance shall notify the taxpayer that an
amount of tax in excess of that shown upon the return is due, and that
such excess has been assessed. Such notice shall not be considered as a
notice of deficiency for the purposes of this section, subdivision six
of section 11-678, limiting credits or refunds after petition to the tax
appeals tribunal, or subdivision two of section 11-680 of this subchap-
ter, authorizing the filing of a petition with the tax appeals tribunal
based on a notice of deficiency, nor shall such assessment or collection
be prohibited by the provisions of subdivision three of this section.
A. 10030 671
5. Exception where federal or New York state change or correction is
not reported.
(a) If the taxpayer fails to comply with subchapter two, three or
three-A of this chapter in not reporting a change or correction or rene-
gotiation, or computation or recomputation of tax, increasing or
decreasing its federal or New York state taxable income, alternative
minimum taxable income or other basis of tax as reported on its federal
or New York state income tax return or in not reporting a change or
correction or renegotiation, or computation or recomputation of tax,
which is treated in the same manner as if it were a deficiency for
federal or New York state income tax purposes or in not filing an
amended return or in not reporting the execution of a notice of waiver
executed pursuant to subsection (d) of section six thousand two hundred
thirteen of the internal revenue code or pursuant to subdivision (f) of
section one thousand eighty-one of the tax law, instead of the mode and
time of assessment provided for in subdivision two of this section, the
commissioner of finance may assess a deficiency based upon such
increased or decreased federal or New York state taxable income, alter-
native minimum taxable income or other basis of tax by mailing to the
taxpayer a notice of additional tax due specifying the amount of the
deficiency, and such deficiency, together with the interest, additions
to tax and penalties stated in such notice, shall be deemed assessed on
the date such notice is mailed unless within thirty days after the mail-
ing of such notice a report of the federal or New York state change or
correction or renegotiation, or computation or recomputation of tax, or
an amended return, where such return was required by subchapter two or
three of this chapter, is filed accompanied by a statement showing wher-
ein such federal or New York state determination and such notice of
additional tax due are erroneous.
(b) Such notice shall not be considered as a notice of deficiency for
the purposes of this section, subdivision six of section 11-678, limit-
ing credits or refunds after petition to the tax appeals tribunal, or
subdivision two of section 11-680 of this subchapter, authorizing the
filing of a petition with the tax appeals tribunal based on a notice of
deficiency, nor shall such assessment or the collection thereof be
prohibited by the provisions of subdivision three of this section.
(c) If the taxpayer has terminated its existence, a notice of addi-
tional tax due may be mailed to the taxpayer's last known address in or
out of the city, and such notice shall be sufficient for purposes of
this subchapter. If the commissioner of finance has received notice that
a person is acting for the taxpayer in a fiduciary capacity, a copy of
such notice shall also be mailed to the fiduciary named in such notice.
6. Waiver of restrictions. The taxpayer shall at any time, whether or
not a notice of deficiency has been issued, have the right to waive the
restrictions on assessment and collection of the whole or any part of
the deficiency by a signed notice in writing filed with the commissioner
of finance.
7. Two or more corporations. In case of a combined return under
subchapter two or three-A or a consolidated return under subchapter
three of two or more corporations, the commissioner of finance may
determine a deficiency of tax under subchapter two, three or three-A of
this chapter with respect to the entire tax due upon such return against
any taxpayer included therein. In the case of a taxpayer which might
have been included in such a return under subchapter two, three or
three-A of this chapter when the tax was originally reported, the
commissioner of finance may determine a deficiency of tax under subchap-
A. 10030 672
ter two, three or three-A of this chapter against such taxpayer and
against any other taxpayers which might have been included in such a
return.
8. Deficiency defined. For the purposes of this subchapter, a defi-
ciency means the amount of the tax imposed by the named subchapters, or
any of them, less: (a) the amount shown as the tax upon the taxpayer's
return, whether the return was made or the tax computed by it or by the
commissioner of finance, and less (b) the amounts previously assessed,
or collected without assessment, as a deficiency and plus (c) the amount
of any rebates. For the purpose or this definition, the tax imposed by
subchapter two, three or three-A of this chapter and the tax shown on
the return shall both be determined without regard to any payment of
estimated tax; and a rebate means so much of an abatement, credit,
refund or other repayment, whether or not erroneous, as was made on the
ground that the amounts entering into the definition of a deficiency
showed a balance in favor of the taxpayer.
9. Exception where change or correction of sales and compensating use
tax liability is not reported.
(a) If a taxpayer fails to comply with subchapter two or three-A of
this chapter in not reporting a change or correction of its sales and
compensating use tax liability or in not filing a copy of an amended
return or report relating to its sales and compensating use tax liabil-
ity, instead of the mode and time of assessment provided for in subdivi-
sion two of this section, the commissioner of finance may assess a defi-
ciency based upon such changed or corrected sales and compensating use
tax liability, as same relates to credits claimed under subchapter two
or three-A of this chapter, by mailing to the taxpayer a notice of addi-
tional tax due specifying the amount of the deficiency, and such defi-
ciency, together with the interest, additions to tax and penalties stat-
ed in such notice, shall be deemed assessed on the date such notice is
mailed unless within thirty days after the mailing of such notice a
report of the state change or correction or a copy of an amended return
or report, where such copy was required by subchapter two or three-A, is
filed accompanied by a statement showing wherein such state determi-
nation and such notice of additional tax due are erroneous.
(b) Such notice shall not be considered as a notice of deficiency for
the purposes of this section, subdivision six of section 11-678, limit-
ing credits or refunds after petition to the tax appeals tribunal, or
subdivision two of section 11-680, authorizing the filing of a petition
with the tax appeals tribunal based on a notice of deficiency, nor shall
such assessment or the collection thereof be prohibited by the
provisions of subdivision three of this section.
(c) If the taxpayer has terminated its existence, a notice of addi-
tional tax due may be mailed to its last known address in or out of the
city, and such notice shall be sufficient for purposes of this subchap-
ter. If the commissioner of finance has received notice that a person is
acting for the taxpayer in a fiduciary capacity, a copy of such notice
shall also be mailed to the fiduciary named in such notice.
§ 11-673 Assessment. 1. Assessment date. The amount of tax which a
return shows to be due, or the amount of tax which a return would have
shown to be due but for a mathematical error, shall be deemed to be
assessed on the date of filing of the return, including any amended
return showing an increase of tax. If a notice of deficiency has been
mailed, the amount of the deficiency shall be deemed to be assessed on
the date specified in subdivision two of section 11-672 of this subchap-
ter if no petition is both served on the commissioner of finance and
A. 10030 673
filed with the tax appeals tribunal, or if a petition is so served and
filed, then upon the date when a decision of the tax appeals tribunal
establishing the amount of the deficiency becomes final. If a report or
an amended return filed pursuant to subchapter two, three or three-A of
this chapter concedes the accuracy of a federal or New York state
adjustment or change or correction or renegotiation or computation or
recomputation of tax, any deficiency in tax under subchapter two, three
or three-A of this chapter resulting therefrom shall be deemed to be
assessed on the date of filing such report or amended return, and such
assessment shall be timely notwithstanding section 11-674 of this
subchapter.
If a report filed pursuant to subchapter two of this chapter concedes
the accuracy of a state change or correction of sales and compensating
use tax liability, any deficiency in tax under subchapter two or three-A
of this chapter resulting therefrom shall be deemed assessed on the date
of filing such report, and such assessment shall be timely notwithstand-
ing section 11-674 of this subchapter.
If a notice of additional tax due, as prescribed in subdivision five
of section 11-672 of this subchapter, has been mailed, the amount of the
deficiency shall be deemed to be assessed on the date specified in such
subdivision unless within thirty days after the mailing of such notice a
report of the federal or New York state adjustment or change or
correction or renegotiation or computation or recomputation of tax, or
an amended return, where such return was required by subchapter two,
three or three-A of this chapter, is filed accompanied by a statement
showing wherein such federal or New York state determination and such
notice of additional tax due are erroneous.
If a notice of additional tax due, as prescribed in subdivision nine
of section 11-672 of this subchapter, has been mailed, the amount of the
deficiency shall be deemed to be assessed on the date specified in such
subdivision unless within thirty days after the mailing of such notice a
report of the state change or correction, or a copy of an amended return
or report, where such copy was required by subchapter two or three-A of
this chapter, is filed accompanied by a statement showing wherein such
state determination and such notice of additional tax due are erroneous.
Any amount paid as a tax or in respect of a tax, other than amounts
paid as estimated tax, shall be deemed to be assessed upon the date of
receipt of payment notwithstanding any other provisions.
2. Other assessment powers. If the mode or time for the assessment of
any tax under the named subchapters, including interest, additions to
tax and assessable penalties, is not otherwise provided for, the commis-
sioner of finance may establish the same by regulations.
3. Estimated tax. No unpaid amount of estimated tax under subchapter
two, three or three-A of this chapter shall be assessed.
4. Supplemental assessment. The commissioner of finance may, at any
time within the period described for assessment, make a supplemental
assessment, subject to the provisions of section 11-672 of this subchap-
ter where applicable, whenever it is ascertained that any assessment is
imperfect or incomplete in any material respect.
5. Cross reference. For assessment in case of jeopardy, see section
11-685 of this subchapter.
§ 11-674 Limitations on assessment. 1. General. Except as otherwise
provided in this section, any tax under the named subchapters shall be
assessed within three years after the return was filed, whether or not
such return was filed on or after the date prescribed.
A. 10030 674
2. Time return deemed filed. For the purposes of this section, a
return of tax filed before the last day prescribed by law or by regu-
lations promulgated pursuant to law for the filing thereof shall be
deemed to be filed on such last day.
3. Exceptions.
(a) Assessment at any time. The tax may be assessed at any time if:
(1) no return is filed,
(2) a false or fraudulent return is filed with intent to evade tax,
(3) in the case of the tax imposed under subchapter two, three or
three-A of this chapter, the taxpayer fails to file a report or amended
return required thereunder, in respect of an increase or decrease in
federal or New York state taxable income, alternative minimum taxable
income or other basis of tax or federal or New York state tax, or in
respect of a change or correction or renegotiation or in respect of the
execution of a notice of waiver report of which is required thereunder,
or computation or recomputation of tax, which is treated in the same
manner as if it were a deficiency for federal or New York state income
tax purposes, or
(4) in the case of the tax imposed under subchapter two or three-A of
this chapter, the taxpayer fails to file a report or amended return or
report required thereunder, in respect of a change or correction of
sales and compensating use tax liability, relating to the purchase or
use of items for which a sales or compensating use tax credit against
the tax imposed by subchapter two or three-A was claimed.
(b) Extension by agreement. Where, before the expiration of the time
prescribed in this section for the assessment of tax, both the commis-
sioner of finance and the taxpayer have consented in writing to its
assessment after such time, the tax may be assessed at any time prior to
the expiration of the period agreed upon. The period so agreed upon may
be extended by subsequent agreements in writing made before the expira-
tion of the period previously agreed upon.
(c) Report of federal or New York state change or correction. In the
case of the tax imposed under subchapter two, three or three-A of this
chapter, if the taxpayer files a report or amended return required ther-
eunder, in respect of an increase or decrease in federal or New York
state taxable income, alternative minimum taxable income or other basis
of tax or federal or New York state tax, or in respect of a change or
correction or renegotiation, or in respect of the execution of a notice
of waiver report of which is required thereunder, or computation or
recomputation of tax, which is treated in the same manner as if it were
a deficiency for federal or New York state income tax purposes, the
assessment, if not deemed to have been made upon the filing of the
report or amended return may be made at any time within two years after
such report or amended return was filed. The amount of such assessment
of tax shall not exceed the amount of the increase in city tax attribut-
able to such federal or New York state change or correction or renegoti-
ation, or computation or recomputation of tax. The provisions of this
paragraph shall not affect the time within which or the amount for which
an assessment may otherwise be made.
(d) Deficiency attributable to net operating loss carryback. If a
deficiency of tax under subchapter two or three-A of this chapter is
attributable to the application to taxpayer of a net operating loss
carryback or a capital loss carryback, it may be assessed at any time
that a deficiency for the taxable year of the loss may be assessed.
(e) Recovery of erroneous refund. An erroneous refund shall be
considered an underpayment of tax on the date made, and an assessment of
A. 10030 675
a deficiency arising out of an erroneous refund may be made at any time
within two years from the making of the refund, except that the assess-
ment may be made within five years from the making of the refund if it
appears that any part of the refund was induced by fraud or misrepresen-
tation of a material fact.
(f) Request for prompt assessment. The tax shall be assessed within
eighteen months after written request therefor, made after the return is
filed, by the taxpayer or by a fiduciary representing the taxpayer, but
not more than three years after the return was filed, except as other-
wise provided in this subdivision and subdivision four of this section.
This subdivision shall not apply unless:
(1) (A) such written request notifies the commissioner of finance that
the taxpayer contemplates dissolution at or before the expiration of
such eighteen-month period, (B) the dissolution is in good faith begun
before the expiration of such eighteen-month period, (C) the dissolution
is completed;
(2) (A) such written request notifies the commissioner of finance that
a dissolution has in good faith been begun, and (B) the dissolution is
completed; or
(3) a dissolution has been completed at the time such written request
is made.
(g) Change of the allocation of taxpayer's income or capital. (1)
With regard to taxable years beginning before January first, two thou-
sand fifteen, no change of the allocation of income or capital upon
which the taxpayer's return, or any additional assessment, was based
shall be made where an assessment of tax is made during the additional
period of limitation under subparagraph three or four of paragraph (a)
of this subdivision, or under paragraph (c), (d) or (i) of this subdivi-
sion; and where any such assessment has been made, or where a notice of
deficiency has been mailed to the taxpayer on the basis of any such
proposed assessment, no change of the allocation of income or capital
shall be made in a proceeding on the taxpayer's claim for refund of such
assessment or on the taxpayer's petition for redetermination of such
deficiency.
(2) With regard to taxable years beginning on or after January first,
two thousand fifteen, no change of the allocation of income or capital
upon which the taxpayer's return, or any additional assessment, was
based shall be made where an assessment of tax is made during the addi-
tional period of limitation under subparagraph three or four of para-
graph (a) or under paragraph (c), (d) or (i) of this subdivision, except
to the extent such assessment is based on an increase or decrease in New
York state taxable income or other basis of tax or New York state tax,
or based on a change, correction or renegotiation of tax, or based on
the execution of a notice of waiver report which is required there-
under, or computation or recomputation of tax, which is treated in the
same manner as if it were a deficiency for New York state income tax
purposes; and where any such assessment has been made, or where a notice
of deficiency has been mailed to the taxpayer on the basis of any such
proposed assessment, no change of the allocation of income or capital
shall be made in a proceeding on the taxpayer's claim for refund of
such assessment or on the taxpayer's petition for redetermination of
such deficiency, except to the extent such assessment is based on an
increase or decrease in New York state taxable income or other basis of
tax or New York state tax, or based on a change or correction or renego-
tiation of tax, or based on the execution of a notice of waiver report
which is required thereunder, or computation or recomputation of tax,
A. 10030 676
which is treated in the same manner as if it were an overpayment for New
York state income tax purposes.
(h) Report concerning waste treatment facility. Under the circum-
stances described in subparagraph three of paragraph (g) of subdivision
eight of section 11-602 of this chapter or in subparagraph three of
paragraph (g) of subdivision eight of section 11-652 of this chapter,
the tax may be assessed within three years after the filing of the
report containing the information required by such paragraph.
(i) Report of changed or corrected sales and compensating use tax
liability. In the case of a tax imposed under subchapter two or three-A
of this chapter, if the taxpayer files a report or amended return or
report required thereunder, in respect of a change or correction of
sales and compensating use tax liability, the assessment, if not deemed
to have been made upon the filing of the report, may be made at any time
within two years after such report or amended return or report was
filed. The amount of such assessment of tax shall not exceed the amount
of the increase in city tax attributable to such state change or
correction. The provisions of this paragraph shall not affect the time
within which or the amount for which an assessment may otherwise be
made.
4. Omission of income on return. The tax may be assessed at any time
within six years after the return was filed if a taxpayer omits from
gross income required to be reported on a return under any of the named
subchapters an amount properly includable therein which is in excess of
twenty-five per centum of the amount of gross income stated in the
return.
For the purposes of this subdivision:
(a) the term "gross income" means gross income for federal income tax
purposes as reportable on a return under subchapter two or three-A of
this chapter and "gross earnings", "gross income," "gross operating
income" and "gross direct premiums less return premiums," as those terms
are used in whichever of the named subchapters is applicable;
(b) there shall not be taken into account any amount which is omitted
in the return if such amount is disclosed in the return, or in a state-
ment attached to the return, in a manner adequate to apprise the commis-
sioner of finance of the nature and amount of such item.
5. Suspension of running of period of limitations. The running of the
period of limitations on assessment or collection of tax or other
amount, or of a tranferee's liability, shall, after the mailing of a
notice of deficiency, be suspended for the period during which the
commissioner of finance is prohibited under subdivision three of section
11-672 of this subchapter from making the assessment or from collecting
by levy.
§ 11-675 Interest on underpayment. 1. General. If any amount of tax
is not paid on or before the last date prescribed in whichever of the
named subchapters is applicable for payment, interest on such amount at
the underpayment rate set by the commissioner of finance pursuant to
section 11-687 of this subchapter, or, if no rate is set, at the rate of
seven and one-half percent per annum shall be paid for the period from
such last date to the date paid, whether or not any extension of time
for payment was granted. Interest under this subdivision shall not be
paid if the amount thereof is less than one dollar.
2. Exception as to estimated tax. This section shall not apply to any
failure to pay estimated tax under subchapter two, three or three-A of
this chapter.
A. 10030 677
3. Exception for mathematical error. No interest shall be imposed on
any underpayment of tax due solely to mathematical error if the taxpayer
files a return within the time prescribed in whichever of the named
subchapters is applicable, including any extension of time, and pays the
amount of underpayment within three months after the due date of such
return, as it may be extended.
4. Suspension of interest on deficiencies. If a waiver of
restrictions on assessment of a deficiency has been filed by the taxpay-
er, and if notice and demand by the commissioner of finance for payment
of such deficiency is not made within thirty days after the filing of
such waiver, interest shall not be imposed on such deficiency for the
period beginning immediately after such thirtieth day and ending with
the date of notice and demand.
5. Tax reduced by carryback. If the amount of tax under subchapter
two or three-A for any taxable year is reduced by reason of a carryback
of a net operating loss or a capital loss, such reduction in tax shall
not affect the computation of interest under this section for the period
ending with the filing date for the taxable year in which the net oper-
ating loss or capital loss arises. Such filing date shall be determined
without regard to extensions of time to file.
6. Interest treated as tax. Interest under this section shall be paid
upon notice and demand and shall be assessed, collected and paid in the
same manner as the taxes under the named subchapters. Any reference in
this subchapter to the tax imposed by the named subchapters, or any of
them, shall be deemed also to refer to interest imposed by this section
on such tax.
7. Interest on penalties or addition to tax. Interest shall be
imposed under subdivision one in respect to any assessable penalty or
addition to tax only if such assessable penalty or addition to tax is
not paid within ten days from the date of the notice and demand therefor
under subdivision two of section 11-683 of this subchapter in such case
interest shall be imposed only for the period from such date of the
notice and demand to the date of payment.
8. Payment within ten days after notice and demand. If notice and
demand is made for payment of any amount under subdivision two of
section 11-683 of this subchapter, and if such amount is paid within ten
days after the date of such notice and demand, interest under this
section on the amount so paid shall not be imposed for the period after
the date of such notice and demand.
9. Limitation on assessment and collection. Interest prescribed under
this section may be assessed and collected at any time during the period
within which the tax or other amount to which such interest relates may
be assessed and collected respectively.
10. Interest on erroneous refund. Any portion of tax or other amount
which has been erroneously refunded, and which is recoverable by the
commissioner of finance, shall bear interest at the underpayment rate
set by the commissioner of finance pursuant to section 11-687 of this
subchapter, or, if no rate is set, at the rate of seven and one-half
percent per annum from the date of the payment of the refund, but only
if it appears that any part of the refund was induced by fraud or a
misrepresentation of a material fact.
11. Satisfaction by credits. If any portion of a tax is satisfied by
credit of an overpayment, then no interest shall be imposed under this
section on the portion of the tax so satisfied for any period during
which, if the credit had not been made, interest would have been allow-
able with respect to such overpayment.
A. 10030 678
§ 11-676 Additions to tax and civil penalties. 1. (a) Failure to file
return. (A) In case of failure to file a return under the named
subchapters on or before the prescribed date, determined with regard to
any extension of time for filing, unless it is shown that such failure
is due to reasonable cause and not due to willful neglect, there shall
be added to the amount required to be shown as tax on such return five
percent of the amount of such tax if the failure is for not more than
one month, with an additional five percent for each additional month or
fraction thereof during which such failure continues, not exceeding
twenty-five percent in the aggregate.
(B) In the case of a failure to file a return of tax within sixty days
of the date prescribed for filing of such return, determined with regard
to any extension of time for filing, unless it is shown that such fail-
ure is due to reasonable cause and not due to willful neglect, the addi-
tion to tax under subparagraph (A) of this paragraph shall not be less
than the lesser of one hundred dollars or one hundred percent of the
amount required to be shown as tax on such return.
(C) For purposes of this paragraph, the amount of tax required to be
shown on the return shall be reduced by the amount of any part of the
tax which is paid on or before the date prescribed for payment of the
tax and by the amount of any credit against the tax which may be claimed
upon the return.
(b) Failure to pay tax shown on return. In case of failure to pay the
amounts shown as tax on any return required to be filed under the named
subchapters on or before the prescribed date, determined with regard to
any extension of time for payment, unless it is shown that such failure
is due to reasonable cause and not due to willful neglect, there shall
be added to the amount shown as tax on such return one-half of one
percent of the amount of such tax if the failure is not for more than
one month, with an additional one-half of one percent for each addi-
tional month or fraction thereof during which such failure continues,
not exceeding twenty-five percent in the aggregate. For the purpose of
computing the addition for any month the amount of tax shown on the
return shall be reduced by the amount of any part of the tax which is
paid on or before the beginning of such month and by the amount of any
credit against the tax which may be claimed upon the return. If the
amount of tax required to be shown on a return is less than the amount
shown as tax on such return, this paragraph shall be applied by substi-
tuting such lower amount.
(c) Failure to pay tax required to be shown on return. In case of
failure to pay any amount in respect of any tax required to be shown on
a return required to be filed under the named subchapters which is not
so shown, including an assessment made pursuant to subdivision one of
section 11-673 of this subchapter, within ten days of the date of a
notice and demand therefor, unless it is shown that such failure is due
to reasonable cause and not due to willful neglect, there shall be added
to the amount of tax stated in such notice and demand one-half of one
percent of such tax if the failure is not for more than one month, with
an additional one-half of one percent for each additional month or frac-
tion thereof during which such failure continues, not exceeding twenty-
five percent in the aggregate. For the purpose of computing the addition
for any month, the amount of tax stated in the notice and demand shall
be reduced by the amount of any part of the tax which is paid before the
beginning of such month.
(d) Limitations on additions.
A. 10030 679
(A) With respect to any return, the amount of the addition under para-
graph (a) of this subdivision shall be reduced by the amount of the
addition under paragraph (b) of this subdivision for any month to which
an addition applies under both paragraphs (a) and (b). In any case
described in subparagraph (B) of paragraph (a) of this subdivision, the
amount of the addition under such paragraph (a) shall not be reduced
below the amount provided in such subparagraph.
(B) With respect to any return, the maximum amount of the addition
permitted under paragraph (c) of this subdivision shall be reduced by
the amount of the addition under paragraph (a) of this subdivision,
determined without regard to subparagraph (B) of such paragraph (a),
which is attributable to the tax for which the notice and demand is made
and which is not paid within ten days of such notice and demand.
2. Deficiency due to negligence. (a) If any part of a deficiency is
due to negligence or intentional disregard of this subchapter or any of
the named subchapters or rules or regulations thereunder, but without
intent to defraud, there shall be added to the tax an amount equal to
five percent of the deficiency.
(b) There shall be added to the tax, in addition to the amount deter-
mined under paragraph (a) of this subdivision, an amount equal to fifty
percent of the interest payable under subdivision one of section 11-675
with respect to the portion of the deficiency described in such para-
graph (a) which is attributable to the negligence or intentional disre-
gard referred to in such paragraph (a), for the period beginning on the
last date prescribed by law for payment of such deficiency, determined
without regard to any extension, and ending on the date of the assess-
ment of the tax, or, if earlier, the date of the payment of the tax.
(c) If any payment is shown on a return made by a payor with respect
to dividends, patronage dividends and interest under subsection (a) of
section six thousand forty-two, subsection (a) of section six thousand
forty-four or subsection (a) of section six thousand forty-nine of the
internal revenue code of nineteen hundred fifty-four, respectively, and
the payee fails to include any portion of such payment in gross income,
as that term is defined in paragraph (a) of subdivision four of section
11-674, any portion of an underpayment attributable to such failure
shall be treated, for purposes of this subdivision, as due to negligence
in the absence of clear and convincing evidence to the contrary. If any
addition to tax is imposed under this subdivision by reason of the
preceding sentence, the amount of the addition to tax imposed by para-
graph (a) of this subdivision shall be five percent of the portion of
the underpayment which is attributable to the failure described in this
paragraph.
3. Failure to file declaration or underpayment of estimated tax. If
any taxpayer fails to file a declaration of estimated tax under subchap-
ter two, three or three-A of this chapter, or fails to pay all or any
part of an amount which is applied as an installment against such esti-
mated tax, it shall be deemed to have made an underpayment of estimated
tax. There shall be added to the tax for the taxable year an amount at
the underpayment rate set by the commissioner of finance pursuant to
section 11-687 of this subchapter, or, if no rate is set, at the rate of
seven and one-half percent per annum upon the amount of the underpayment
for the period of the underpayment but not beyond the fifteenth day of
the fourth month following the close of the taxable year. Provided,
however, that, for taxable years beginning on or after January first,
two thousand seventeen and before January first, two thousand eighteen,
no amount shall be added to the tax with respect to the portion of such
A. 10030 680
tax related to the amount of any interest deductions directly or indi-
rectly attributable to the amount included in exempt CFC income pursuant
to subparagraph (ii) of paragraph (b) of subdivision five-a of section
11-652 of this chapter or the forty percent reduction of such exempt CFC
income in lieu of interest attribution if the election described in
paragraph (b) of subdivision five-a of such section is made. The amount
of the underpayment shall be, with respect to any installment of esti-
mated tax computed on the basis of either the preceding year's tax or
the second preceding year's tax, the excess of the amount required to be
paid over the amount, if any, paid on or before the last day prescribed
for such payment or, with respect to any other installment of estimated
tax, the excess of the amount of the installment which would be required
to be paid if the estimated tax were equal to ninety percent of the tax
shown on the return for the taxable year, or if no return was filed,
ninety percent of the tax for such year, over the amount, if any, of the
installment paid on or before the last day prescribed for such payment.
In any case in which there would be no underpayment if "eighty percent"
were substituted for "ninety percent" each place it appears in this
subdivision, the addition to the tax shall be equal to seventy-five
percent of the amount otherwise determined. No underpayment shall be
deemed to exist with respect to a declaration or installment otherwise
due on or after the termination of existence of the taxpayer.
4. Exception to addition for underpayment of estimated tax. The addi-
tion to tax under subdivision three of this section with respect to any
underpayment of any amount which is applied as an installment against
estimated tax under subchapter two, three or three-A of this chapter
shall not be imposed if the total amount of all payments of estimated
tax made on or before the last date prescribed for the payment of any
such amount equals or exceeds the amount which would have been required
to be paid on or before such date if the estimated tax were whichever of
the following is the least:
(a) The tax shown on the return of the taxpayer for the preceding
taxable year, if a return showing a liability for tax was filed by the
taxpayer for the preceding taxable year and such preceding year was a
taxable year of twelve months, or
(b) An amount equal to the tax computed at the rates applicable to the
taxable year, but otherwise on the basis of the facts shown on the
return of the taxpayer for, and the law applicable to, the preceding
taxable year, or
(c) (i) An amount equal to ninety per centum of the tax for the taxa-
ble year computed by placing on an annualized basis the taxable income:
(1) for the first three months or the first five months of the taxable
year, in the case of the installment required to be paid in the sixth
month,
(2) for the first six months or the first eight months of the taxable
year, in the case of the installment required to be paid in the ninth
month, and
(3) for the first nine months or the first eleven months of the taxa-
ble year, in the case of the installment required to be paid in the
twelfth month.
(ii) For purposes of subparagraph (i) of this paragraph the taxable
income shall be placed on an annualized basis by:
(1) multiplying it by twelve, or, in the case of a taxable year of
less than twelve months, the number of months in the taxable year, and
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(2) dividing the resulting amount by the number of months in the taxa-
ble year, three, five, six, eight, nine or eleven, as the case may be,
referred to in subparagraph (i) of this paragraph, or
(d) (i) If the base period percentage for any six consecutive months
of the taxable year equals or exceeds seventy percent, an amount equal
to ninety percent of the tax determined in the following manner:
(A) take the taxable income for all months during the taxable year
preceding the filing month,
(B) divide such amount by the base period percentage for all months
during the taxable year preceding the filing month,
(C) determine the tax on the amount determined under clause (B) of
this subparagraph, and
(D) multiply the tax determined under clause (C) of this subparagraph
by the base period percentage for the filing month and all months during
the taxable year preceding the filing month.
(ii) For purposes of subparagraph (i) of this paragraph:
(A) the base period percentage for any period of months shall be the
average percent which the taxable income for the corresponding months in
each of the three preceding taxable years bears to the taxable income
for the three preceding taxable years. The commissioner of finance may
by regulations provide for the determination of the base period percent-
age in the case of reorganizations, new corporations, and other similar
circumstances, and
(B) the term "filing month" means the month in which the installment
is required to be paid.
5. (a) Except as provided in paragraph (b) of this subdivision, para-
graphs (a) and (b) of subdivision four of this section shall not apply
in the case of any corporation, or any predecessor corporation, which
had entire net income, or the portion thereof allocated within the city,
of one million dollars or more for any taxable year during the three
taxable years immediately preceding the taxable year involved.
(b) The amount treated as the estimated tax under paragraphs (a) and
(b) of subdivision four of this section shall in no event be less than
seventy-five percent of the tax shown on the return for the taxable year
beginning in nineteen hundred eighty-three or, if no return was filed,
seventy-five percent of the tax for such year.
6. Deficiency due to fraud. (a) If any part of a deficiency is due to
fraud, there shall be added to the tax an amount equal to two times the
deficiency.
(b) The addition to tax under this subdivision shall be in lieu of any
other addition to tax imposed by subdivision one or two of this section.
7. Additional penalty. Any person who with fraudulent intent shall
fail to pay under the named subchapters any tax, or to make, render,
sign or certify any return or declaration of estimated tax, or to supply
any information within the time required by or under any of the named
subchapters, shall be liable to penalty of not more than one thousand
dollars, in addition to any other amounts required under this subchapter
to be imposed, assessed and collected by the commissioner of finance.
The commissioner of finance shall have the power, in his or her
discretion, to waive, reduce or compromise any penalty under this subdi-
vision.
8. Additions treated as tax. The additions to tax and penalties
provided by this section shall be paid upon notice and demand and shall
be assessed, collected and paid in the same manner as taxes, and any
reference in this subchapter to tax imposed by any of the named subchap-
ters shall be deemed also to refer to the additions to tax and penalties
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provided by this section. For purposes of section 11-672 of this
subchapter, this subdivision shall not apply to:
(a) any addition to tax under subdivision one of this section except
as to that portion attributable to a deficiency;
(b) any addition to tax under subdivision three or fourteen of this
section; and
(c) any additional penalties under subdivisions seven and twelve of
this section.
9. Determination of deficiency. For purposes of subdivisions two and
six of this section the amount shown as the tax by the taxpayer upon its
return shall be taken into account in determining the amount of the
deficiency only if such return was filed on or before the last day
prescribed for the filing of such return, determined with regard to any
extension of time for such filing.
10. Person defined. For purposes of subdivisions seven and twelve of
this section, the term "person" includes an individual, corporation or
partnership or an officer or employee of any corporation, including a
dissolved corporation, or a member or employee of any partnership, who
as such officer, employee, or member is under a duty to perform the act
in respect of which the violation occurs.
11. Substantial understatement of liability. If there is a substantial
understatement of tax for any taxable year, there shall be added to the
tax an amount equal to ten percent of the amount of any underpayment
attributable to such understatement. For purposes of this subdivision,
there is a substantial understatement of tax for any taxable year if the
amount of the understatement for the taxable year exceeds the greater of
ten percent of the tax required to be shown on the return for the taxa-
ble year or five thousand dollars. For purposes of this subdivision, the
term "understatement" means the excess of the amount of the tax required
to be shown on the return for the taxable year, over the amount of the
tax imposed which is shown on the return, reduced by any rebate, within
the meaning of subdivision eight of section 11-672 of this subchapter.
The amount of such understatement shall be reduced by that portion of
the understatement which is attributable to the tax treatment of any
item by the taxpayer if there is or was substantial authority for such
treatment, or any item with respect to which the relevant facts affect-
ing the item's tax treatment are adequately disclosed in the return or
in a statement attached to the return. The commissioner of finance may
waive all or any part of the addition to tax provided by this subdivi-
sion on a showing by the taxpayer that there was reasonable cause for
the understatement, or part thereof, and that the taxpayer acted in good
faith.
12. Aiding or assisting in the giving of fraudulent returns, reports,
statements or other documents. (a) Any person who, with the intent that
tax be evaded, shall, for a fee or other compensation or as an incident
to the performance of other services for which such person receives
compensation, aid or assist in, or procure, counsel, or advise the prep-
aration or presentation under, or in connection with any matter arising
under this chapter of any return, report, declaration, statement or
other document which is fraudulent or false as to any material matter,
or supply any false or fraudulent information, whether or not such
falsity or fraud is with the knowledge or consent of the person author-
ized or required to present such return, report, declaration, statement
or other document shall pay a penalty not exceeding ten thousand
dollars.
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(b) For purposes of paragraph (a) of this subdivision, the term
"procures" includes ordering, or otherwise causing, a subordinate to do
an act, and knowing of, and not attempting to prevent, participation by
a subordinate in an act. The term "subordinate" means any other person,
whether or not a director, officer, employee, or agent of the taxpayer
involved, over whose activities the person has direction, supervision,
or control.
(c) For purposes of paragraph (a) of this subdivision, a person
furnishing typing, reproducing, or other mechanical assistance with
respect to a document shall not be treated as having aided or assisted
in the preparation of such document by reason of such assistance.
(d) The penalty imposed by this subdivision shall be in addition to
any other penalty provided by law.
13. Failure to file report of information relating to certain interest
payments. In case of failure to file the report of information required
under either subdivision two-a of section 11-605 of this chapter or
subdivision two-a of section 11-655 of this chapter, unless it is shown
that such failure is due to reasonable cause and not due to willful
neglect, there shall be added to the tax a penalty of five hundred
dollars.
14. Failure to include on return information relating to issuer's
allocation percentage. Where a return is filed but does not contain (1)
the information necessary to compute the taxpayer's issuer's allocation
percentage, as defined in subparagraph one of paragraph (b) of subdivi-
sion three of section 11-604 of this chapter, where the same is called
for on the return, or, (2) the taxpayer's issuer's allocation percent-
age, where the same is called for on the return but where all of the
information necessary for the computation of such percentage is not
called for on the return, then unless it is shown that such failure is
due to reasonable cause and not due to willful neglect there shall be
added to the tax a penalty of five hundred dollars.
15. False or fraudulent document penalty. Any taxpayer that submits a
false or fraudulent document to the department shall be subject to a
penalty of one hundred dollars per document submitted, or five hundred
dollars per tax return submitted. Such penalty shall be in addition to
any other penalty or addition provided by law.
§ 11-677 Overpayment. 1. General. The commissioner of finance,
within the applicable period of limitations, may credit an overpayment
of tax and interest on such overpayment against any liability in respect
of any tax imposed by this title on the taxpayer who made the overpay-
ment, and the balance shall be refunded out of the proceeds of the tax.
Such credit of an overpayment shall be applied before such overpay-
ment, or any portion thereof, is paid to the state commissioner of taxa-
tion and finance pursuant to section one hundred seventy-one-m of the
tax law.
2. Credits against estimated tax. The commissioner of finance may
prescribe regulations providing for the crediting against the estimated
tax under subchapter two, three or three-A of this chapter for any taxa-
ble year of the amount determined to be an overpayment of tax under any
such subchapter for a preceding taxable year. If any overpayment of tax
is so claimed as a credit against estimated tax for the succeeding taxa-
ble year, such amount shall be considered as a payment of the tax under
subchapter two, three or three-A of this chapter for the succeeding
taxable year, whether or not claimed as a credit in the declaration of
estimated tax for such succeeding taxable year, and no claim for credit
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or refund of such overpayment shall be allowed for the taxable year for
which the overpayment arises.
3. Rule where no tax liability. If there is no tax liability for a
period in respect of which an amount is paid as tax, such amount shall
be considered an overpayment.
4. Assessment and collection after limitation period. If any amount
of tax is assessed or collected after the expiration of the period of
limitations properly applicable thereto, such amount shall be considered
an overpayment.
5. Assignment of overpayment. A credit for an overpayment of tax
under any of the named subchapters may be assigned by the taxpayer to a
corporation liable to pay taxes under any of the named subchapters, and
the assignee of the whole or any part of such credit, on filing such
assignment with the commissioner of finance, shall thereupon be entitled
to credit upon the books of the commissioner of finance for the amount
thereof on its current account for taxes, in the same manner and to the
same effect as though the credit had originally been allowed in its
favor.
6. Notwithstanding article fifty-two of the civil practice law and
rules or any other provision of law to the contrary, the procedures for
the enforcement of money judgments shall not apply to the department of
finance, or to any officer or employee of such department, as a garnish-
ee, with respect to any amount of money to be refunded or credited to a
taxpayer under this chapter.
§ 11-678 Limitations on credit or refund. 1. General. Claim for
credit or refund of an overpayment of tax under any of the named
subchapters shall be filed by the taxpayer within three years from the
time the return was filed or two years from the time the tax was paid,
whichever of such periods expires the later, or if no return was filed
within two years from the time the tax was paid. If the claim is filed
within the three year period, the amount of the credit or refund shall
not exceed the portion of the tax paid within the three years immediate-
ly preceding the filing of the claim plus the period of any extension of
time for filing the return. If the claim is not filed within the three
year period, but is filed within the two year period, the amount of the
credit or refund shall not exceed the portion of the tax paid during the
two years immediately preceding the filing of the claim. Except as
otherwise provided in this section, if no claim is filed, the amount of
a credit or refund shall not exceed the amount which would be allowable
if a claim had been filed on the date the credit or refund is allowed.
For special restriction in a proceeding on a claim for refund of tax
paid pursuant to an assessment made as a result of: (a) a net operating
loss carryback, or (b) an increase or decrease in federal or New York
state taxable income or other basis of tax or federal or New York state
tax, or (c) a federal or New York state change or correction or renego-
tiation, or computation or recomputation of tax, which is treated in the
same manner as if it were a deficiency for federal or New York state
income tax purposes, see paragraph (g) of subdivision three of section
11-674 of this subchapter.
2. Extension of time by agreement. If any agreement under the
provisions of paragraph (b) of subdivision three of section 11-674 of
this subchapter, extending the period of assessment of tax, is made
within the period prescribed in subdivision one of this section for the
filing of a claim for credit or refund, the period for filing a claim
for credit or refund, or for making credit or refund if no claim is
filed, shall not expire prior to six months after the expiration of the
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period within which an assessment may be made pursuant to the agreement
or any extension thereof. The amount of such credit or refund shall not
exceed the portion of the tax paid after the execution of the agreement
and before the filing of the claim or the making of the credit or
refund, as the case may be, plus the portion of the tax paid within the
period which would be applicable under subdivision one if a claim had
been filed on the date the agreement was executed.
3. Notice of change or correction of federal or New York state income
or other basis of tax. If a taxpayer is required by subchapter two,
three or three-A of this chapter to file a report or amended return in
respect of (a) a decrease or increase in federal or New York state taxa-
ble income, alternative minimum taxable income or other basis of tax or
federal or New York state tax, (b) a federal or New York state change or
correction or renegotiation, or computation or recomputation of tax,
which is treated in the same manner as if it were an overpayment for
federal or New York state income tax purposes, claim for credit or
refund of any resulting overpayment of tax shall be filed by the taxpay-
er within two years from the time such report or amended return was
required to be filed with the commissioner of finance. If the report or
amended return required by subchapter two, three or three-A of this
chapter is not filed within the ninety day period therein specified, no
interest shall be payable on any claim for credit or refund of the over-
payment attributable to the federal or New York state change or
correction. The amount of such credit or refund: (c) shall, (i) for
taxable years beginning before January first, two thousand fifteen, be
computed without change of the allocation of income or capital upon
which the taxpayer's return, or any additional assessment, was based,
and, (ii) for taxable years beginning on or after January first, two
thousand fifteen, be computed without change of the allocation of
income or capital upon which the taxpayer's return, or any additional
assessment, was based to the extent that the claim for refund arises
from a decrease or increase in federal taxable income or other basis
of tax or federal tax, or from a federal change, correction, renegoti-
ation, computation or recomputation of tax, which is treated in the
same manner as if it were an overpayment for federal income tax
purposes, and (d) shall not exceed the amount of the reduction in tax
attributable to such decrease or increase in federal or New York state
taxable income, alternative minimum taxable income or other basis of tax
or federal or New York state tax or to such federal or New York state
change or correction or renegotiation, or computation or recomputation
of tax.
This subdivision shall not affect the time within which or the amount
for which a claim for credit or refund may be filed apart from this
subdivision.
4. Overpayment attributable to net operating loss carryback or capital
loss carryback. A claim for credit or refund of so much of an overpay-
ment under subchapter two or three-A of this chapter as is attributable
to the application to the taxpayer of a net operating loss carryback or
a capital loss carryback shall be filed within three years from the time
the return was due, including extensions thereof, for the taxable year
of the loss, or within the period prescribed in subdivision two of this
section in respect of such taxable year, or within the period prescribed
in subdivision three of this section, where applicable, in respect to
the taxable year to which the net operating loss or capital loss is
carried back, whichever expires the latest. Where such claim for credit
or refund is filed after the expiration of the period prescribed in
A. 10030 686
subdivision one or in subdivision two of this section where applicable,
in respect to the taxable year to which the net operating loss is
carried back, the amount of such credit or refund shall be computed
without change of the allocation of income or capital upon which the
taxpayer's return, or any additional assessment, was based.
5. Failure to file claim within prescribed period. No credit or
refund shall be allowed or made, except as provided in subdivision six
of this section or subdivision four of section 11-681 of this subchap-
ter, after the expiration of the applicable period of limitation speci-
fied in this subchapter, unless a claim for credit or refund is filed by
the taxpayer within such period. Any later credit shall be void and
any later refund erroneous. No period of limitations specified in any
other law shall apply to the recovery by a taxpayer of moneys paid in
respect of taxes under the named subchapters.
6. Effect of a petition to tax appeals tribunal. If a notice of defi-
ciency for a taxable year has been mailed to the taxpayer under section
11-672 of this subchapter and if the taxpayer files a timely petition
with the tax appeals tribunal under section 11-680 of this subchapter,
the tax appeals tribunal may determine that the taxpayer has made an
overpayment for such year, whether or not it also determines a deficien-
cy for such year. No separate claim for credit or refund for such year
shall be filed, and no credit or refund for such year shall be allowed
or made, except:
(a) as to overpayment determined by a decision of the tax appeals
tribunal which has become final; and
(b) as to any amount collected in excess of an amount computed in
accordance with the decision of the tax appeals tribunal which has
become final; and
(c) as to any amount collected after the period of limitation upon the
making of levy for collection has expired; and
(d) as to any amount claimed as a result of a change or correction
described in subdivision three of this section.
7. Limit on amount of credit or refund. The amount of overpayment
determined under subdivision six of this section shall, when the deci-
sion of the tax appeals tribunal has become final, be credited or
refunded in accordance with subdivision one of section 11-677 of this
subchapter and shall not exceed the amount of tax which the tax appeals
tribunal determines as part of its decision was paid:
(a) after the mailing of the notice of deficiency, or
(b) within the period which would be applicable under subdivision one,
two or three of this section, if on the date of the mailing of the
notice of deficiency a claim had been filed, whether or not filed, stat-
ing the ground upon which the tax appeals tribunal finds that there is
an overpayment.
For special restriction on credit or refund in a proceeding on a peti-
tion for redetermination of a deficiency where the notice of deficiency
is issued as a result of (i) a net operating loss carryback, or (ii) an
increase or decrease in federal or New York state taxable income or
other basis of tax or federal or New York state tax, or (iii) a federal
or New York state change or correction or renegotiation, or computation
or recomputation of tax, which is treated in the same manner as if it
were a deficiency for federal or New York state income tax purposes, see
paragraph (g) of subdivision three of section 11-674 of this subchapter.
8. Early return. For purposes of this section, any return filed
before the last day prescribed for the filing thereof shall be consid-
A. 10030 687
ered as filed on such last day, determined without regard to any exten-
sion of time granted the taxpayer.
9. Prepaid tax. For purposes of this section, any tax paid by the
taxpayer before the last day prescribed for its payment, including any
amount paid by the taxpayer as estimated tax for a taxable year, shall
be deemed to have been paid by it on the fifteenth day of the third
month following the close of the taxable year the income of which is the
basis for tax under subchapter two, three or three-A of this chapter, or
on the last day prescribed in part one of subchapter three or subchapter
four of this chapter for the filing of a final return for such taxable
year, or portion thereof, determined in all cases without regard to any
extension of time granted the taxpayer.
10. Cross reference. For provision barring refund of overpayment
credited against tax of a succeeding year, see subdivision two of
section 11-677 of this subchapter.
11. Notice of change or correction of sales and compensating use tax
liability. (a) If a taxpayer is required by subchapter two or three-A of
this chapter to file a report or amended return in respect of a change
or correction of its sales and compensating use tax liability, claim for
credit or refund of any resulting overpayment of tax shall be filed by
the taxpayer within two years from the time such report or amended
return was required to be filed with the commissioner of finance. The
amount of such credit or refund shall be computed without change of the
allocation of income or capital upon which the taxpayer's return, or any
additional assessment, was based, and shall not exceed the amount of the
reduction in tax attributable to such change or correction of sales and
compensating use tax liability.
(b) This subdivision shall not affect the time within which or the
amount for which a claim for credit or refund may be filed apart from
this subdivision.
§ 11-679 Interest on overpayment. 1. General. Notwithstanding the
provisions of section three-a of the general municipal law, interest
shall be allowed and paid as follows at the overpayment rate set by the
commissioner of finance pursuant to section 11-687 of this subchapter,
or, if no rate is set, at the rate of six percent per annum upon any
overpayment in respect to the tax imposed by any of the named subchap-
ters:
(a) from the date of the overpayment to the due date of an amount
against which a credit is taken;
(b) from the date of the overpayment to a date, to be determined by
the commissioner of finance, preceding the date of a refund check by not
more than thirty days, whether or not such refund check is accepted by
the taxpayer after tender of such check to the taxpayer. The acceptance
of such check shall be without prejudice to any right of the taxpayer to
claim any additional overpayment and interest thereon.
(c) Late and amended returns and claims for credit or refund.
Notwithstanding paragraph (a) or (b) of this subdivision, in the case of
an overpayment claimed on a return of tax which is filed after the last
date prescribed for filing such return, determined with regard to exten-
sions, or claimed on an amended return of tax or claimed on a claim for
credit or refund, no interest shall be allowed or paid for any day
before the date on which such return or claim is filed.
(d) Interest on certain refunds. To the extent provided for in regu-
lations promulgated by the commissioner of finance, if an item of
income, gain, loss, deduction or credit is changed from the taxable year
or period in which it is reported to the taxable year or period in which
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it belongs and the change results in an underpayment in a taxable year
or period and an overpayment in some other taxable year or period, the
provisions of paragraph (c) of this subdivision with respect to an over-
payment shall not be applicable to the extent that the limitation in
such paragraph on the right to interest would result in a taxpayer not
being allowed interest for a length of time with respect to an overpay-
ment while being required to pay interest on an equivalent amount of the
related underpayment. However, this paragraph shall be not construed as
limiting or mitigating the effect of any statute of limitations or any
other provision of law relating to the authority of such commissioner to
issue a notice of deficiency or to allow a credit or refund of an over-
payment.
(e) Amounts of less than one dollar. No interest shall be allowed or
paid if the amount thereof is less than one dollar.
2. Advance payment of tax and estimated tax. The provisions of subdi-
visions eight and nine of section 11-678 of this subchapter applicable
in determining the date of payment of tax for purposes of determining
the period of limitations on credit or refund, shall be applicable in
determining the date of payment for purposes of this section.
3. Tax refund within three months of claim for overpayment. If any
overpayment of tax imposed by any of the named subchapters is credited
or refunded within three months after the last date prescribed, or
permitted by extension of time, for filing the return of such tax on
which such overpayment was claimed or within three months after such
return was filed, whichever is later, or within three months after an
amended return was filed claiming such overpayment or within three
months after a claim for credit or refund was filed on which such over-
payment was claimed, no interest shall be allowed under this section on
any such overpayment. For purposes of this subdivision, any amended
return or claim for credit or refund filed before the last day
prescribed, or permitted by extension of time, for the filing of the
return of tax for such year or period shall be considered as filed on
such last day.
4. Refund of tax caused by carryback. For purposes of this section,
if any overpayment of tax imposed by subchapter two or three-A of this
chapter results from a carryback of a net operating loss or a net capi-
tal loss, such overpayment shall be deemed not to have been made prior
to the filing date for the taxable year in which such net operating loss
or net capital loss arises. Such filing date shall be determined without
regard to extensions of time to file. For purposes of subdivision three
of this section any overpayment described herein shall be treated as an
overpayment for the loss year and such subdivision shall be applied with
respect to such overpayment by treating the return for the loss year as
not filed before claim for such overpayment is filed. The term "loss
year" means the taxable year in which such loss arises.
5. No interest until return in processible form.
(a) For purposes of subdivisions one and three of this section, a
return shall not be treated as filed until it is filed in processible
form.
(b) For purposes of paragraph (a) of this subdivision, a return is in
a processible form if:
(A) such return is filed on a permitted form, and
(B) such return contains:
(i) the taxpayer's name; address, and identifying number and the
required signatures, and
A. 10030 689
(ii) sufficient required information, whether on the return or on
required attachments, to permit the mathematical verification of tax
liability shown on the return.
6. Cross reference. For provision with respect to interest after
failure to file a report of federal or New York state change or
correction or amended return under subchapter two, three or three-A, see
subdivision three of section 11-678 of this subchapter.
§ 11-680 Petition to tax appeals tribunal. 1. General. The form of a
petition to the tax appeals tribunal, and further proceedings before the
tax appeals tribunal in any case initiated by the filing of a petition,
shall be governed by such rules as the tax appeals tribunal shall
prescribe. No petition shall be denied in whole or in part without
opportunity for a hearing on reasonable prior notice. Such hearing and
any appeal to the tribunal sitting en banc from the decision rendered in
such hearing shall be conducted in the manner and subject to the
requirements prescribed by the tax appeals tribunal pursuant to sections
one hundred sixty-eight through one hundred seventy-two of the charter
of the preceding municipality as it existed January first, nineteen
hundred ninety-four. A decision of the tax appeals tribunal shall be
rendered, and notice thereof shall be given, in the manner provided by
section one hundred seventy-one of the charter of the preceding munici-
pality as it existed January first, nineteen hundred ninety-four.
2. Petition for redetermination of a deficiency. Within ninety days,
or one hundred fifty days if the notice is addressed to a taxpayer whose
last known address is outside of the United States, after the mailing of
the notice of deficiency authorized by section 11-672 of this subchap-
ter, or if the commissioner of finance has established a conciliation
procedure pursuant to section 11-124 of this title and the taxpayer has
requested a conciliation conference in accordance therewith, after nine-
ty days from the mailing of the conciliation decision or the date of the
commissioner's confirmation of the discontinuance of the conciliation
proceeding, the taxpayer may file a petition with the tax appeals tribu-
nal for redetermination of the deficiency. Such petition may also assert
a claim for refund for the same taxable year or years, subject to the
limitations of subdivision seven of section 11-678 of this subchapter.
For special restriction where the notice of deficiency relates to a
proposed assessment made as a result of: (a) a net operating loss carry-
back or a capital loss carryback, (b) an increase or decrease in federal
or New York state taxable income or other basis of tax or federal or New
York state tax, or (c) a federal or New York state change or correction
or renegotiation, or computation or recomputation of tax, which is
treated in the same manner as if it were a deficiency for federal or New
York state income tax purposes, see paragraph (g) of subdivision three
of section 11-674 of this subchapter.
3. Petition for refund. A taxpayer may file a petition with the tax
appeals tribunal for the amounts asserted in a claim for refund if:
(a) the taxpayer has filed a timely claim for refund with the commis-
sioner of finance,
(b) the taxpayer has not previously filed with the tax appeals tribu-
nal a timely petition under subdivision two of this section for the same
taxable year unless the petition under this subdivision relates to a
separate claim for credit or refund properly filed under subdivision six
of section 11-678 of this subchapter, and
(c) either: (1) six months have expired since the claim was filed, or
(2) the commissioner of finance has mailed to the taxpayer, by regis-
A. 10030 690
tered or certified mail, a notice of disallowance of such claim in whole
or in part.
No petition under this subdivision shall be filed more than two years
after the date of mailing of a notice of disallowance, unless prior to
the expiration of such two year period it has been extended by written
agreement between the taxpayer and the commissioner of finance. If a
taxpayer files a written waiver of the requirement that the taxpayer be
mailed a notice of disallowance, the two year period prescribed by this
subdivision for filing a petition for refund shall begin on the date
such waiver is filed.
(d) If the commissioner of finance has established a conciliation
procedure pursuant to section 11-124 of this title, a taxpayer which is
eligible to file a petition for refund with the tax appeals tribunal
pursuant to this subdivision may request a conciliation conference prior
to filing such petition, provided the request is made within the time
prescribed for filing the petition. Notwithstanding anything in this
subdivision to the contrary, if the taxpayer has requested a concil-
iation conference in accordance with the procedure established pursuant
to section 11-124 of this title, a petition for refund may be filed no
later than ninety days from the mailing of the conciliation decision or
the date of the commissioner's confirmation of the discontinuance of the
conciliation proceeding.
4. Assertion of deficiency after filing petition.
(a) Petition for redetermination of deficiency. If a taxpayer files
with the tax appeals tribunal a petition for redetermination of a defi-
ciency, the tax appeals tribunal shall have power to determine a greater
deficiency than asserted in the notice of deficiency and to determine if
there should be assessed any addition to tax or penalty provided in
section 11-676 of this subchapter, if claim therefor is asserted at or
before the hearing under rules of the tax appeals tribunal.
(b) Petition for refund. If the taxpayer files with the tax appeals
tribunal a petition for credit or refund for a taxable year, the tax
appeals tribunal may:
(1) determine a deficiency for such year as to any amount of deficien-
cy asserted at or before the hearing under rules of the tax appeals
tribunal and within the period in which an assessment would be timely
under section 11-674 of this subchapter, or
(2) deny so much of the amount for which credit or refund is sought in
the petition, as is offset by other issues pertaining to the same taxa-
ble year which are asserted at or before the hearing under rules of the
tax appeals tribunal.
(c) Opportunity to respond. A taxpayer shall be given a reasonable
opportunity to respond to any matters asserted by the commissioner of
finance under this subdivision.
(d) Restriction on further notices of deficiency. If the taxpayer
files a petition with the tax appeals tribunal under this section, no
notice of deficiency under section 11-672 of this subchapter may there-
after be issued by the commissioner of finance for the same taxable
year, except in case of fraud or with respect to an increase or decrease
in federal or New York state taxable income, alternative minimum taxable
income or other basis of tax or federal or New York state tax or a
federal or New York state change or correction or renegotiation, or
computation or recomputation of tax, which is treated in the same manner
as if it were a deficiency for federal or New York state income tax
purposes, required to be reported under subchapter two, three or three-A
of this chapter or with respect to a state change or correction of sales
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and compensating use tax liability required to be reported under
subchapter two or three-A of this chapter.
5. Burden of proof. In any case before the tax appeals tribunal under
this subchapter, the burden of proof shall be upon the petitioner except
for the following issues, as to which the burden of proof shall be upon
the commissioner of finance:
(a) whether the petitioner has been guilty of fraud with intent to
evade tax;
(b) whether the petitioner is liable as the transferee of property of
a taxpayer, but not to show that the taxpayer was liable for the tax;
(c) whether the petitioner is liable for any increase in a deficiency
where such increase is asserted initially after a notice of deficiency
was mailed and a petition under this section filed, unless such increase
in deficiency is the result of an increase or decrease in federal or New
York state taxable income, alternative minimum taxable income or other
basis of tax or federal or New York state tax or a federal or New York
state change or correction or renegotiation, or computation or recompu-
tation of tax, which is treated in the same manner as if it were a defi-
ciency for federal or New York state income tax purposes, required to be
reported under subchapter two, three or three-A of this chapter, and of
which increase, decrease, change or correction or renegotiation, or
computation or recomputation, the commissioner of finance had no notice
at the time he or she mailed the notice of deficiency or unless such
increase in deficiency is the result of a change or correction of sales
and compensating use tax liability required to be reported under
subchapter two or three-A of this chapter, and of which change or
correction the commissioner of finance had no notice at the time he or
she mailed the notice of deficiency; and
(d) whether any person is liable for a penalty under subdivision
twelve of section 11-676 of this subchapter.
6. Evidence of related federal or state determination. Evidence of a
federal or state determination relating to issues raised in a case
before the tax appeals tribunal under this section shall be admissible,
under rules established by the tax appeals tribunal.
7. Jurisdiction over other years. The tax appeals tribunal shall
consider such facts with relation to the taxes for other years as may be
necessary correctly to determine the tax for the taxable year, but in so
doing shall have no jurisdiction to determine whether or not the tax for
any other year has been overpaid or underpaid.
§ 11-681 Review of tax appeals tribunal's decision. 1. General. A
decision of the tax appeals tribunal sitting en banc shall be subject to
judicial review at the instance of any taxpayer affected thereby in the
manner provided by law for the review of a final decision or action of
administrative agencies of the city. An application by a taxpayer for
such review must be made within four months after notice of the decision
is sent by certified mail, return receipt requested, to the taxpayer and
the commissioner of finance.
2. Judicial review exclusive remedy. The review of a decision of the
tax appeals tribunal provided by this section shall be the exclusive
remedy available to any taxpayer for the judicial determination of the
liability of the taxpayer for the taxes imposed by the named subchap-
ters.
3. Assessment pending review; review bond. Irrespective of any
restrictions on the assessment and collection of deficiencies, the
commissioner of finance may assess a deficiency determined by the tax
appeals tribunal in a decision rendered pursuant to section one hundred
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seventy-one of the charter of the preceding municipality as it existed
January first, nineteen hundred ninety-four after the expiration of the
period specified in subdivision one, notwithstanding that an application
for judicial review in respect of such deficiency has been duly made by
the taxpayer unless the taxpayer, at or before the time the taxpayer's
application for review is made, has paid the deficiency, has deposited
with the commissioner of finance the amount of the deficiency, or has
filed with the commissioner of finance a bond, which may be a jeopardy
bond under subdivision eight of section 11-685 of this subchapter, in
the amount of the portion of the deficiency, including interest and
other amounts, in respect of which the application for review is made
and all costs and charges which may accrue against the taxpayer in the
prosecution of the proceeding, including costs of all appeals, and with
surety approved by a justice of the supreme court of the state, condi-
tioned upon the payment of the deficiency, including interest and other
amounts, as finally determined and such costs and charges. If, as a
result of a waiver of the restrictions on the assessment and collection
of a deficiency, any part of the amount determined by the tax appeals
tribunal is paid after the filing of the review bond, such bond shall,
at the request of the taxpayer, be proportionately reduced.
4. Credit, refund or abatement after review. If the amount of a defi-
ciency determined by the tax appeals tribunal is disallowed in whole or
in part by the court of review, the amount so disallowed shall be cred-
ited or refunded to the taxpayer, without the making of claim therefor,
or, if payment has not been made, shall be abated.
5. Date of finality of tax appeals tribunal decision. A decision of
the tax appeals tribunal shall become final upon the expiration of the
period specified in subdivision one of this section for making an appli-
cation for review, if no such application has been duly made within such
time, or if such application has been duly made, upon expiration of the
time for all further judicial review, or upon the rendering by the tax
appeals tribunal of a decision in accordance with the mandate of the
court on review provided, however, for the purpose of making an applica-
tion for review, the decision of the tax appeals tribunal shall be
deemed final on the date the notice of decision is sent by certified
mail to the taxpayer and the commissioner of finance.
§ 11-682 Mailing rules; holidays; miscellaneous. 1. Timely mailing.
(a) If any return, declaration of estimated tax, claim, statement,
notice, petition, or other document required to be filed, or any payment
required to be made, within a prescribed period or on or before a
prescribed date under authority of any provision of this subchapter or
of the named subchapters is, after such period or such date, delivered
by United States mail to the commissioner of finance, tax appeals tribu-
nal, bureau, office, officer or person with which or with whom such
document is required to be filed, or to which or to whom such payment is
required to be made, the date of the United States postmark stamped on
the envelope shall be deemed to be the date of delivery. This subdivi-
sion shall apply only if the postmark date falls within the prescribed
period or on or before the prescribed date for the filing of such docu-
ment, or for making the payment, including any extension granted for
such filing or payment, and only if such document or payment was depos-
ited in the mail, postage prepaid, properly addressed to the commission-
er of finance, tax appeals tribunal, bureau, office, officer or person
with which or with whom the document is required to be filed or to which
or to whom such payment is required to be made. If any document is sent
by United States registered mail, such registration shall be prima facie
A. 10030 693
evidence that such document was delivered to the commissioner of
finance, tax appeals tribunal, bureau, office, officer or person to
which or to whom addressed. To the extent that the commissioner of
finance or, where relevant, the tax appeals tribunal shall prescribe by
regulation, certified mail may be used in lieu of registered mail under
this subdivision. Except as provided in paragraph (b) of this subdivi-
sion, this subdivision shall apply in the case of postmarks not made by
the United States postal service only if and to the extent provided by
regulations of the commissioner of finance or, where relevant, the tax
appeals tribunal.
(b) (i) Any reference in paragraph (a) of this subdivision to the
United States mail shall be treated as including a reference to any
delivery service designated by the secretary of the treasury of the
United States pursuant to section seventy-five hundred two of the inter-
nal revenue code and any reference in paragraph (a) of this subdivision
to a United States postmark shall be treated as including a reference to
any date recorded or marked in the manner described in section seventy-
five hundred two of the internal revenue code by a designated delivery
service. If the commissioner of finance finds that any delivery service
designated by such secretary is inadequate for the needs of the city,
the commissioner may withdraw such designation for purposes of this
title. The commissioner may also designate additional delivery services
meeting the criteria of section seventy-five hundred two of the internal
revenue code for purposes of this title, or may withdraw any such desig-
nation if the commissioner of finance finds that a delivery service so
designated is inadequate for the needs of the city. Any reference in
paragraph (a) of this subdivision to the United States mail shall be
treated as including a reference to any delivery service designated by
the commissioner of finance and any reference in paragraph (a) of this
subdivision to a United States postmark shall be treated as including a
reference to any date recorded or marked in the manner described in
section seventy-five hundred two of the internal revenue code by a
delivery service designated by the commissioner of finance, provided,
however, any withdrawal of designation or additional designation by the
commissioner of finance shall not be effective for purposes of service
upon the tax appeals tribunal, unless and until such withdrawal of
designation or additional designation is ratified by the president of
the tax appeals tribunal.
(ii) Any equivalent of registered or certified mail designated by the
United States secretary of the treasury, or as may be designated by the
commissioner of finance pursuant to the same criteria used by such
secretary for such designations pursuant to section seventy-five hundred
two of the internal revenue code, shall be included within the meaning
of registered or certified mail as used in paragraph (a) of this subdi-
vision. If the commissioner of finance finds that any equivalent of
registered or certified mail designated by such secretary or the commis-
sioner of finance is inadequate for the needs of the city, the commis-
sioner of finance may withdraw such designation for purposes of this
title, provided, however, any withdrawal of designation or additional
designation by the commissioner of finance shall not be effective for
purposes of service upon the tax appeals tribunal, unless and until such
withdrawal of designation or additional designation is ratified by the
president of the tax appeals tribunal.
2. Last known address. For purposes of this subchapter, a taxpayer's
last known address shall be the address given in the last return filed
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by it, unless subsequently to the filing of such return the taxpayer
shall have notified the commissioner of finance of a change of address.
3. Last day a Saturday, Sunday or legal holiday. When the last day
prescribed under authority of this subchapter or the named subchapters,
including any extension of time, for performing any act falls on a
Saturday, Sunday, or legal holiday in the state, the performance of such
act shall be considered timely if it is performed on the next succeeding
day which is not a Saturday, Sunday or legal holiday.
4. Certificate; unfiled return. For purposes of this subchapter and
sections one hundred sixty-eight through one hundred seventy-two of the
charter of the preceding municipality as it existed January first, nine-
teen hundred ninety-four, the certificate of the commissioner of finance
to the effect that a tax has not been paid, that a return or declaration
of estimated tax has not been filed, or that information has not been
supplied, as required by or under the provisions of this chapter, shall
be prima facie evidence that such tax has not been paid, that such
return or declaration has not been filed, or that such information has
not been supplied.
§ 11-683 Collection, levy and liens. 1. Collection procedures. The
taxes imposed by the named subchapters shall be collected by the commis-
sioner of finance, and he or she may establish the mode or time for the
collection of any amount due him or her thereunder if not otherwise
specified. The commissioner of finance shall, upon request, give a
receipt for any sum collected thereunder. The commissioner of finance
may authorize banks or trust companies which are depositaries or finan-
cial agents of the city to receive and give a receipt for any tax
imposed under the named subchapters in such manner, at such times, and
under such conditions as the commissioner of finance may prescribe; and
the commissioner of finance shall prescribe the manner, times and condi-
tions under which the receipt of such tax by such banks and trust compa-
nies is to be treated as payment of such tax to the commissioner of
finance.
2. Notice and demand for tax. The commissioner of finance shall as
soon as practicable give notice to each taxpayer liable for any amount
of tax, addition to tax, penalty or interest, which has been assessed
but remains unpaid, stating the amount and demanding payment thereof.
Such notice shall be left at the principal office of the taxpayer in the
city or shall be sent by mail to such taxpayer's last known address.
Except where the commissioner of finance determines that collection
would be jeopardized by delay, if any tax is assessed prior to the last
date, including any date fixed by extension, prescribed for payment of
such tax, payment of such tax shall not be demanded until after such
date.
3. Issuance of warrant after notice and demand. If any corporation or
other person liable under the named subchapters for the payment of any
tax, addition to tax, penalty or interest neglects or refuses to pay the
same within ten days after notice and demand therefor is given to such
corporation or other person under subdivision two of this section, the
commissioner of finance may within six years after the date of such
assessment issue a warrant directed to the sheriff of any county of the
state, or to any officer or employee of the department of finance,
commanding him or her to levy upon and sell the real and personal prop-
erty of such corporation or other person for the payment of the amount
assessed, with the cost of executing the warrant, and to return such
warrant to the commissioner of finance, and pay to the commissioner the
money collected by virtue thereof within sixty days after the receipt of
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the warrant. If the commissioner of finance finds that the collection
of the tax or other amount is in jeopardy, notice and demand for immedi-
ate payment of such tax may be made by the commissioner of finance and
upon failure or refusal to pay such tax or other amount the commissioner
of finance may issue a warrant without regard to the ten-day period
provided in this subdivision.
4. Copy of warrant to be filed and lien to be created. Any sheriff or
officer or employee who receives a warrant under subdivision three of
this section shall within five days thereafter file a copy with the
clerk of the appropriate county. The clerk shall thereupon enter in the
judgment docket, in the column for judgment debtors, the name of the
taxpayer mentioned in the warrant, and in appropriate columns the tax or
other amounts for which the warrant is issued and the date when such
copy is filed; and such amount shall thereupon be a binding lien upon
the real, personal and other property of the taxpayer.
5. Judgment. When a warrant has been filed with the county clerk the
commissioner of finance shall, on behalf of the city, be deemed to have
obtained judgment against the taxpayer for the tax or other amounts.
6. Execution. The sheriff or officer or employee shall thereupon
proceed upon the judgment in all respects, with like effect, and in the
same manner prescribed by law in respect to executions issued against
property upon judgments of a court of record, and a sheriff shall be
entitled to the same fees for his or her services in executing the
warrant, to be collected in the same manner. An officer or employee of
the department of finance may proceed in any county or counties of this
state and shall have all the powers of execution conferred by law upon
sheriffs, but shall be entitled to no fee or compensation in excess of
actual expenses paid in connection with the execution of the warrant.
7. Foreign corporations. Where a notice and demand under subdivision
two of this section shall have been given to a foreign corporation or
other person who is not then a resident, and it appears to the commis-
sioner of finance that it is not practicable to find in the state prop-
erty of such foreign corporation or nonresident person sufficient to pay
the entire balance of tax or other amount owing by such foreign corpo-
ration or nonresidential person, the commissioner of finance may, in
accordance with subdivision three of this section, issue a warrant
directed to an officer or employee of the department of finance, a copy
of which warrant shall be mailed by certified or registered mail to such
foreign corporation or nonresident person at its last known address,
subject to the rules of mailing provided in subdivision one of section
11-672 of this subchapter. Such warrant shall command the officer or
employee to proceed in Richmond county, and he or she shall, within five
days after receipt of the warrant, file the warrant and obtain a judg-
ment in accordance with this section. Thereupon the commissioner of
finance may authorize the institution of any action or proceeding to
collect or enforce the judgment in any place and by any procedure that a
civil judgment of the supreme court of the state of New York could be
collected or enforced. The commissioner of finance may also, in his or
her discretion, designate agents or retain counsel for the purpose of
collecting, outside the state, any unpaid taxes, additions to tax,
penalties or interest which have been assessed under this subchapter or
under any of the named subchapters, against foreign corporations or
other non-resident persons, may fix the compensation of such agents and
counsel to be paid out of money appropriated or otherwise lawfully
available for payment thereof, and may require of them bonds or other
security for the faithful performance of their duties, in such form and
A. 10030 696
in such amount as the commissioner of finance shall deem proper and
sufficient.
8. Action by city for recovery of taxes. Action may be brought by the
corporation counsel of the city at the instance of the commissioner of
finance to recover the amount of any unpaid taxes, additions to tax,
penalties or interest which have been assessed under this subchapter or
under the named subchapters within six years prior to the date the
action is commenced.
9. Release of lien. The commissioner of finance, if he or she finds
that the interests of the city will not thereby be jeopardized, and upon
such conditions as it may require, may release any property from the
lien of any warrant filed under subdivision four or seven of this
section for unpaid taxes, additions to tax, penalties and interest filed
pursuant to this section, and such release or vacating of the warrant
may be recorded in the office of any recording officer in which such
warrant has been filed. The clerk shall thereupon cancel and discharge
as of the original date of docketing the vacated warrant.
10. Lien from due date of return. (a) In addition to any other lien
provided for in this section, each tax imposed by the named subchapters
shall become a lien on the date on which the return is required to be
filed, without regard to any extension of time for filing such return,
except that such tax shall become a lien not later than the date the
taxpayer ceases to be subject to the tax imposed by any of the named
subchapters, or to do business in this state in a corporate or organized
capacity. Each such tax shall be a lien and binding upon the real and
personal property of the taxpayer, or of a transferee liable to pay the
same, until the same is paid in full, except that no lien for any addi-
tional tax assessed pursuant to this subchapter shall be enforceable
against property which prior to the issuance to the taxpayer of a notice
of deficiency under section 11-672 of this subchapter had been trans-
ferred in good faith to a bona fide transferee for value. But the lien
of each such tax shall be subject to the lien of any mortgage indebt-
edness existing against real property previous to the time when the tax
became a lien and where such mortgage indebtedness has been incurred in
good faith and was not given, directly or indirectly, to any officer or
stockholder of the corporation owning such real property, whether as a
purchase money mortgage or otherwise, and shall also be subject to the
lien of local taxes and assessments, without regard to when the lien for
such taxes and assessments may have accrued. If the return is filed and
the tax shown on the report to be due is paid on or before the date on
which the report is required to be filed, without regard to any exten-
sions of time for filing such report, the lien shall not be enforceable
against the interest of any purchaser or mortgagee in property which is
thereafter, but prior to the issuance to the taxpayer of a notice of
deficiency under section 11-672 of this subchapter transferred to a bona
fide purchaser for value, or mortgaged where the mortgage indebtedness
is incurred in good faith and the mortgage is not given, directly or
indirectly, to any officer or stockholder of the corporation. In any
action to foreclose any such mortgage, or to foreclose the lien of local
taxes or assessments, to which the people of the state, or the city
shall have been made a party defendant by reason of the existence of a
lien for any such tax, or if no such tax was due or was a lien at the
time of the commencement of such action and the filing of the notice of
pendency thereof but such a tax becomes due or becomes a lien subsequent
to the time of the commencement of such action and the filing of the
notice of pendency thereof, such real property shall be sold and
A. 10030 697
conveyed in such action free from any such tax lien, and any such tax
lien may become a lien on any surplus moneys which may result from such
sale, to be determined in the proceedings for the distribution of such
surplus moneys. Where title to real property passes from an individual,
or from a corporation owing no tax, to another corporation which is in
default for such tax, the lien herein provided shall not be enforceable
except as to any equity after the prior mortgage or purchase money mort-
gage encumbrance.
(b) The commissioner of finance may, upon application made to the
commissioner and the payment of a fee of twenty-five dollars, release
any real property from the lien under this subdivision, provided payment
be made to the commissioner of finance of such a sum as the commissioner
of finance shall deem adequate consideration for such release, or depos-
it be made of such security or such bond be filed as the commissioner of
finance shall deem proper to secure payment of any such tax. The appli-
cation for such release shall contain an accurate description of the
property to be released together with such information as the commis-
sioner of finance may require. Such release may be recorded in any
office in which conveyances of real estate are entitled to be recorded.
(c) All taxes, additions to tax, penalties and interest which have
become a lien under this subdivision shall cease to be a lien after the
expiration of twenty years from the date they become due and payable,
except that taxes, additions to tax, penalties and interest which have
become a lien under this subdivision (1) as to real estate in the hands
of persons who are owners thereof who would be purchasers in good faith
but for such taxes, additions to tax, penalties or interest and (2) as
to the lien on real estate of mortgages held by persons who would be
holders thereof in good faith but for such taxes, additions to tax,
penalties or interest, as against such purchasers or holders, shall
cease to be a lien after the expiration of ten years from the date they
become due and payable. The limitations herein provided for shall not
apply to any transfer from a corporation to a person or corporation with
intent to avoid payment of any taxes, or where with like intent the
transfer is made to a grantee corporation, or any subsequent grantee
corporation, controlled by such grantor or which has any community of
interest with it, either through stock ownership or otherwise.
§ 11-684 Transferees. 1. General. The liability, at law or in equi-
ty, of a transferee of property of a taxpayer for any tax, additions to
tax, penalty or interest due the commissioner of finance under this
subchapter or under the named subchapters, shall be assessed, paid, and
collected in the same manner and subject to the same provisions and
limitations as in the case of the tax to which the liability relates,
except that the period of limitations for assessment against the trans-
feree shall be extended by one year for each successive transfer, in
order, from the original taxpayer to the transferee involved, but not by
more than three years in the aggregate. The term transferee includes,
in case of successive transfers, donee, heir, legatee, devisee, distri-
butee, and successor by merger, consolidation or other reorganization.
2. Exceptions.
(a) If before the expiration of the period of limitations for assess-
ment of liability of the transferee, a claim has been filed by the
commissioner of finance in any court against the original taxpayer or
the last preceding transferee based upon the liability of the original
taxpayer, then the period of limitation for assessment of liability of
the transferee shall in no event expire prior to one year after such
claim has been finally allowed, disallowed or otherwise disposed of.
A. 10030 698
(b) If, before the expiration of the time prescribed in subdivision
one or paragraph (a) of this subdivision for the assessment of the
liability, the commissioner of finance and the transferee have both
consented in writing to its assessment after such time, the liability
may be assessed at any time prior to the expiration of the period agreed
upon. The period so agreed upon may be extended by subsequent agree-
ments in writing made before the expiration of the period previously
agreed upon. For the purpose of determining the period of limitation on
credit or refund to the transferee or overpayments of tax made by such
transferee or overpayments of tax made by the transferor as to which the
transferee is legally entitled to credit or refund, such agreement and
any extension thereof shall be deemed an agreement and extension thereof
referred to in subdivision two of section 11-678 of this subchapter. If
the agreement is executed after the expiration of the period of limita-
tion for assessment against the original taxpayer, then in applying the
limitations under subdivision two of section 11-678 of this subchapter
on the amount of the credit or refund, the period specified in subdivi-
sion one of section 11-678 of this subchapter shall be increased by the
period from the date of such expiration to the date of the agreement.
3. Period for assessment against certain transferors. For purposes of
this section, if any person is deceased or is a corporation which has
terminated its existence, the period of limitation for assessment
against such person or corporation shall be the period that would be in
effect had death or termination of existence not occurred.
4. Evidence. The commissioner of finance shall use his or her powers
to make available to the transferee evidence necessary to enable the
transferee to determine the liability of the original taxpayer and of
any preceding transferees, but without undue hardship to the original
taxpayer or preceding transferee. See subdivision five of section
11-680 of this subchapter for rule as to burden of proof.
§ 11-685 Jeopardy assessments. 1. Authority for making. If the commis-
sioner of finance believes that the assessment or collection of a defi-
ciency will be jeopardized by delay, the commissioner shall, notwith-
standing the provisions of section 11-672 of this subchapter immediately
assess such deficiency, together with all interest, penalties and addi-
tions to tax provided for by law, and notice and demand shall be made by
the commissioner of finance for the payment thereof.
2. Notice of deficiency. If the jeopardy assessment is made before any
notice in respect of the tax to which the jeopardy assessment relates
has been mailed under section 11-672 of this subchapter, then the
commissioner of finance shall mail a notice under such section within
sixty days after the making of the assessment.
3. Amount assessable before decision of the tax appeals tribunal. The
jeopardy assessment may be made in respect of a deficiency greater or
less than that of which notice is mailed to the taxpayer and whether or
not the taxpayer has theretofore filed a petition with the tax appeals
tribunal. The commissioner of finance may, at any time before tax
appeals tribunal renders its decision, abate such assessment, or any
unpaid portion thereof, to the extent that the commissioner believes the
assessment to be excessive in amount. The tax appeals tribunal may in
its decision redetermine the entire amount of the deficiency and of all
amounts assessed at the same time in connection therewith.
4. Amounts assessable after decision of the tax appeals tribunal. If
the jeopardy assessment is made after the decision of the tax appeals
tribunal is rendered, such assessment may be made only in respect of the
deficiency determined by the tax appeals tribunal in its decision.
A. 10030 699
5. Expiration of right to assess. A jeopardy assessment may not be
made after the decision of the tax appeals tribunal has become final or
after the taxpayer has made an application for review of the decision of
the tax appeals tribunal.
6. Collection of unpaid amounts. When a petition has been filed with
the tax appeals tribunal and when the amount which should have been
assessed has been determined by a decision of the tax appeals tribunal
which has become final, then any unpaid portion, the collection of which
has been stayed by bond, shall be collected as part of the tax upon
notice and demand from the commissioner of finance, and any remaining
portion of the assessment shall be abated. If the amount already
collected exceeds the amount determined as the amount which should have
been assessed, such excess shall be credited or refunded to the taxpayer
as provided in section 11-677 of this subchapter without the filing of
claim therefor. If the amount determined as the amount which should
have been assessed is greater than the amount actually assessed, then
the difference shall be assessed and shall be collected as part of the
tax upon notice and demand from the tax appeals tribunal.
7. Abatement if jeopardy does not exist. The commissioner of finance
may abate the jeopardy assessment if the commissioner finds that jeopar-
dy does not exist. Such abatement may not be made after a decision of
the tax appeals tribunal in respect of the deficiency has been rendered
or, if no petition is filed with the tax appeals tribunal, after the
expiration of the period for filing such petition. The period of limita-
tion on the making of assessments and levy or a proceeding for
collection, in respect of any deficiency, shall be determined as if the
jeopardy assessment so abated had not been made, except that the running
of such period shall in any event be suspended for the period from the
date of such jeopardy assessment until the expiration of the tenth day
after the day on which such jeopardy assessment is abated.
8. Bond to stay collection. The collection of the whole or any amount
of any jeopardy assessment may be stayed by filing with the commissioner
of finance, within such time as may be fixed by regulation, a bond in an
amount equal to the amount as to which the stay is desired, conditioned
upon the payment of the amount, together with interest thereon, the
collection of which is stayed at the time of which, but for the making
of the jeopardy assessment, such amount would be due. Upon the filing
of the bond the collection of so much of the amount assessed as is
covered by the bond shall be stayed. The taxpayer shall have the right
to waive such stay at any time in respect of the whole or any part of
the amount covered by the bond, and if as a result of such waiver any
part of the amount covered by the bond is paid, then the bond shall at
the request of the taxpayer, be proportionately reduced. If any portion
of the jeopardy assessment is abated, or if a notice of deficiency under
section 11-672 of this subchapter is mailed to the taxpayer in a lesser
amount, the bond shall, at the request of the taxpayer, be proportion-
ately reduced.
9. Petition to tax appeals tribunal. If the bond is given before the
taxpayer has filed its petition under section 11-680 of this subchapter,
the bond shall contain a further condition that if a petition is not
filed within the period provided in such section, then the amount, the
collection of which is stayed by the bond, will be paid on notice and
demand at any time after the expiration of such period, together with
interest thereon from the date of the jeopardy notice and demand to the
date of notice and demand under this subdivision. The bond shall be
conditioned upon the payment of so much of such assessment, collection
A. 10030 700
of which is stayed by the bond, as is not abated by a decision of the
tax appeals tribunal which has become final. If the tax appeals tribunal
determines that the amount assessed is greater than the amount which
should have been assessed, then the bond shall, at the request of the
taxpayer, be proportionately reduced when the decision of the tax
appeals tribunal is rendered.
10. Stay of sale of seized property pending tax appeals tribunal's
decision. Where a jeopardy assessment is made, the property seized for
the collection of the tax shall not be sold:
(a) if subdivision two of this section is applicable, prior to the
issuance of the notice of deficiency and the expiration of the time
provided in section 11-680 of this subchapter for filing a petition with
the tax appeals tribunal, and
(b) if a petition is filed with the tax appeals tribunal, whether
before or after the making of such jeopardy assessment, prior to the
expiration of the period during which the assessment of the deficiency
would be prohibited if subdivision one of this section were not applica-
ble.
Such property may be sold if the taxpayer consents to the sale, or if
the commissioner of finance determines that the expenses of conservation
and maintenance will greatly reduce the net proceeds, or if the property
is perishable.
11. Interest. For the purpose of subdivision one of section 11-675 of
this subchapter, the last date prescribed for payment shall be deter-
mined without regard to any notice and demand for payment issued under
this section prior to the last date otherwise prescribed for such
payment.
12. Early termination of taxable year. If the commissioner of finance
finds that a taxpayer designs quickly to remove its property from this
state, or to conceal its property therein, or to do any other act tend-
ing to prejudice or to render wholly or partly ineffectual proceedings
to collect the tax for the current or the preceding taxable year unless
such proceedings be brought without delay, the commissioner of finance
shall declare the taxable period for such taxpayer immediately termi-
nated, and shall cause notice of such finding and declaration to be
given the taxpayer, together with a demand for immediate payment of the
tax for the taxable period so declared terminated and of the tax for the
preceding taxable year so much of such tax as is unpaid, whether or not
the time otherwise allowed by law for filing return and paying the tax
has expired; and such taxes shall thereupon become immediately due and
payable. In any proceeding brought to enforce payment of taxes made due
and payable by virtue of the provisions of this subdivision, the finding
of the commissioner of finance made as herein provided, whether made
after notice to the taxpayer or not, shall be for all purposes presump-
tive evidence of jeopardy.
13. Reopening of taxable period. Notwithstanding the termination of
the taxable period of the taxpayer by the commissioner of finance, as
provided in subdivision twelve of this section, the commissioner of
finance may reopen such taxable period each time the taxpayer is found
by the commissioner of finance to have received income, within the
current taxable year, since the termination of such period. A taxable
period so terminated by the commissioner of finance may be reopened by
the taxpayer if it files with the commissioner of finance a true and
accurate return under any of the named subchapters for such taxable
period, together with such other information as the commissioner of
finance may by regulations prescribe.
A. 10030 701
14. Furnishing of bond where taxable year is closed by the commission-
er of finance. Payment of taxes shall not be enforced by any proceedings
under the provisions of subdivision twelve of this section prior to the
expiration of the time otherwise allowed for paying such taxes if the
taxpayer furnishes, under regulations prescribed by the commissioner of
finance, a bond to insure the timely making of returns with respect to,
and payment of, such taxes or any taxes for prior years.
§ 11-686 Criminal penalties; cross-reference. For criminal penalties,
see chapter forty of this title.
§ 11-687 General powers of the commissioner of finance. 1. General.
The commissioner of finance shall administer and enforce the tax imposed
by the named subchapters and the commissioner is authorized to make such
rules and regulations, and to require such facts and information to be
reported, as the commissioner may deem necessary to enforce the
provisions of this subchapter and of the named subchapters; and the
commissioner may delegate the commissioner's powers and functions under
all subchapters of this chapter to one of the commissioner's deputies or
to any employee or employees of his or her department.
2. Examination of books and witnesses. The commissioner of finance,
for the purpose of ascertaining the correctness of any return, or for
the purpose of making an estimate of tax liability of any corporation,
shall have power to examine or to cause to have examined, by any agent
or representative designated by the commissioner for that purpose, any
books, papers, records or memoranda bearing upon the matters required to
be included in the return, and may require the attendance of the corpo-
ration rendering the return through any officer or employee of such
corporation, or the attendance of any other person having knowledge in
the premises, and may take testimony and require proof material for the
commissioner's information, with power to administer oaths to such
person or persons.
3. Abatement authority. The commissioner of finance, of the commis-
sioner's own motion, may abate any small unpaid balance of an assessment
of tax, or any liability in respect thereof, if the commissioner of
finance determines under uniform rules prescribed by the commissioner
that the administration and collection costs involved would not warrant
collection of the amount due. The commissioner may also abate, of his
or her own motion, the unpaid portion of the assessment of any tax or
any liability in respect thereof, which is excessive in amount, or is
assessed after the expiration of the period of limitation properly
applicable thereto, or is erroneously or illegally assessed. No claim
for abatement under this subdivision shall be filed by a taxpayer.
4. Special refund authority. Where no questions of fact or law are
involved and it appears from the records of the commissioner of finance
that any moneys have been erroneously or illegally collected from any
taxpayer or other person, or paid by such taxpayer or other person under
a mistake of facts, pursuant to the provisions of this subchapter or any
of the named subchapters, the commissioner of finance at anytime, with-
out regard to any period of limitations, shall have the power, upon
making a record of his or her reasons therefor in writing, to cause such
moneys so paid and being erroneously and illegally held to be refunded.
5. (a) Authority to set interest rates. The commissioner of finance
shall set the overpayment and underpayment rates of interest to be paid
pursuant to sections 11-606, 11-608, 11-645, 11-647, 11-656, 11-658,
11-675, 11-676, and 11-679 of this chapter, but if no such rate or rates
of interest are set, such overpayment rate shall be deemed to be set at
six percent per annum and such underpayment rate shall be deemed to be
A. 10030 702
set at seven and one-half percent per annum. Such overpayment and
underpayment rates shall be the rates prescribed in paragraph (b) of
this subdivision but the underpayment rate shall not be less than seven
and one-half percent per annum. Any such rates set by the commissioner
of finance shall apply to taxes, or any portion thereof, which remain or
become due or overpaid on or after the date on which such rates become
effective and shall apply only with respect to interest computed or
computable for periods or portions of periods occurring in the period
during which such rates are in effect.
(b) General rule. (A) Overpayment rate. The overpayment rate set under
this subdivision shall be the sum of (i) the federal short-term rate as
provided under paragraph (c) of this subdivision, plus (ii) two percent-
age points.
(B) Underpayment rate. The underpayment rate set under this subdivi-
sion shall be the sum of (i) the federal short-term rate as provided
under paragraph (c) of this subdivision, plus (ii) seven percentage
points.
(c) Federal short-term rate. For purposes of this subdivision:
(A) The federal short-term rate for any month shall be the federal
short-term rate determined by the United States secretary of the treas-
ury during such month in accordance with subsection (d) of section
twelve hundred seventy-four of the internal revenue code for use in
connection with section six thousand six hundred twenty-one of the
internal revenue code. Any such rate shall be rounded to the nearest
full percent, or, if a multiple of one-half of one percent, such rate
shall be increased to the next highest full percent.
(B) Period during which rate applies.
(i) In general. Except as provided in clause (ii) of this subpara-
graph, the federal short-term rate for the first month in each calendar
quarter shall apply during the first calendar quarter beginning after
such month.
(ii) Special rule for the month of September, nineteen hundred eight-
y-nine. The federal short-term rate for the month of April, nineteen
hundred eighty-nine shall apply with respect to setting the overpayment
and underpayment rates for the month of September, nineteen hundred
eighty-nine.
(d) Publication of interest rates. The commissioner of finance shall
cause to be published in the city record, and give other appropriate
general notice of, the interest rates to be set under this subdivision
no later than twenty days preceding the first day of the calendar quar-
ter during which such interest rates apply. The setting and publication
of such interest rates shall not be included within paragraph (a) of
subdivision five of section one thousand forty-one of the city charter
relating to the definition of a rule.
(e) Cross-reference. For provisions relating to the power of the
commissioner of finance to abate small amounts of interest, see subdivi-
sion three of this section.
6. In computing the amount of any interest required to be paid under
this subchapter or any of the named subchapters by the commissioner of
finance or by the taxpayer, or any other amount determined by reference
to such amount of interest, such interest and such amount shall be
compounded daily. The preceding sentence shall not apply for purposes of
computing the amount of any addition to tax for failure to pay estimated
tax under subdivision three of section 11-676 of this subchapter.
§ 11-688 Secrecy required of official; penalty for violation. 1.
Except in accordance with proper judicial order or as otherwise provided
A. 10030 703
by law, it shall be unlawful for the commissioner of finance, the
department of finance of the city, any officer or employee of the
department of finance of the city, the tax appeals tribunal, any commis-
sioner or employee of such tribunal, any person who, pursuant to this
section, is permitted to inspect any report or return, or to whom any
information contained in any report or return is furnished, any person
engaged or retained by such department on an independent contract basis,
or any person who in any manner may acquire knowledge of the contents of
a report filed pursuant to this chapter, to divulge or make known in any
manner the amount of income or any particulars set forth or disclosed in
any report or return, under this chapter. The officers charged with the
custody of such reports and returns shall not be required to produce any
of them or evidence of anything contained in them in any action or
proceeding in any court, except on behalf of the city in an action or
proceeding involving the collection of a tax due under this chapter to
which the city is a party or a claimant, or on behalf of any party to
any action or proceeding under the provisions of this chapter when the
reports, returns or facts shown thereby are directly involved in such
action or proceeding, in any of which events the court may require the
production of, and may admit in evidence, so much of said reports or
returns or of facts shown thereby as are pertinent to the action or
proceeding, and no more. Nothing herein shall be construed to prohibit
the delivery to a taxpayer or its duly authorized representative of a
copy of any report filed by it, nor to prohibit the publication of
statistics so classified as to prevent the identification of particular
reports or returns and the items thereof, or the inspection by the
corporation counsel or other legal representatives of the city of the
report or return of any taxpayer which shall bring action to set aside
or review the tax based thereon, or against which an action or proceed-
ing under this chapter or under any local law of the city imposed as
authorized by the act authorizing the adoption of this chapter has been
recommended by the commissioner of finance or the corporation counsel or
has been instituted, or the inspection of the reports or returns of any
taxpayer by the duly designated officers or employees of the city for
purposes of an audit under this chapter or an audit authorized by the
act authorizing the adoption of this chapter; and nothing in this
subchapter or chapter eleven of this title shall be construed to prohib-
it the publication of the issuer's allocation percentage, as defined in
subparagraph one of paragraph (b) of subdivision three of section 11-604
of this chapter, of any corporation which may be required to be allo-
cated within the city for purposes of the tax imposed by any of the
named subchapters or chapter eleven of this title.
2. (a) Any officer or employee of the state or city who willfully
violates the provisions of subdivision one of this section shall be
dismissed from office and be incapable of holding any public office in
the city or this state for a period of five years thereafter.
(b) Cross-reference: For criminal penalties, see chapter forty of this
title.
3. Notwithstanding any provisions of this section, the commissioner of
finance may permit the secretary of the treasury of the United States or
his or her delegates, or the proper officer of this or any other state
charged with tax administration, or the authorized representative of
either such officer, to inspect the returns or reports filed under any
of the named subchapters, or may furnish to such officer or his or her
authorized representative an abstract of any such return or report or
supply information concerning an item contained in any such return or
A. 10030 704
report, or supply him or her with information concerning an item
contained in any such return or report, or disclosed by an investigation
of tax liability under any of the named subchapters, but such permission
shall be granted or such information furnished to such officer or his or
her representative only if the laws of the United States or of such
state, as the case may be, grant substantially similar privileges to the
commissioner of finance and such information is to be used for tax
purposes only; and provided further the commissioner of finance may
furnish to the secretary of the treasury of the United States or his or
her delegates or to the tax commission of the state of New York or its
delegates such returns or reports filed under any of the named subchap-
ters and other tax information, as he or she may consider proper, for
use in court actions or proceedings under the internal revenue code or
the tax law of the state of New York, whether civil or criminal, where a
written request therefor has been made to the commissioner of finance by
the secretary of the treasury or by such tax commission or by their
delegates, provided the laws of the United States or the laws of the
state of New York grant substantially similar powers to the secretary of
the treasury or his or her delegates or to such tax commission or its
delegates. Where the commissioner of finance has so authorized use of
returns, reports or other information in such actions or proceedings,
officers and employees of the department of finance may testify in such
actions or proceedings in respect to such returns, reports of other
information.
4. Notwithstanding the provisions of subdivision one of this section,
the commissioner of finance, in his or her discretion, may require or
permit any or all persons liable for any tax imposed by this chapter to
make payments on account of estimated tax and payment of any tax, penal-
ty or interest imposed by this chapter to banks, banking houses or trust
companies designated by the commissioner of finance and to file declara-
tions of estimated tax, applications for automatic extensions of time to
file reports, and reports with such banks, banking houses or trust
companies as agents of the commissioner of finance, in lieu of making
any such payment directly to the commissioner of finance. However, the
commissioner of finance shall designate only such banks, banking houses
or trust companies as are depositories or financial agents of the city.
5. This section shall be deemed a state statute for purposes of para-
graph (a) of subdivision two of section eighty-seven of the public offi-
cers law.
6. Notwithstanding anything in subdivision one of this section to the
contrary, if a taxpayer has petitioned the tax appeals tribunal for
administrative review as provided in section one hundred seventy of the
charter of the preceding municipality as it existed January first, nine-
teen hundred ninety-four, the commissioner of finance shall be author-
ized to present to the tribunal any report or return of such taxpayer,
or any information contained therein or relating thereto, which may be
material or relevant to the proceeding before the tribunal. The tax
appeals tribunal shall be authorized to publish a copy or a summary of
any decision rendered pursuant to section one hundred seventy-one of the
charter of the preceding municipality as it existed January first, nine-
teen hundred ninety-four.
7. Notwithstanding anything in subdivision one of this section, the
commissioner of finance may disclose to a taxpayer or a taxpayer's
related member, as defined in paragraph (n) of subdivision eight of
section 11-602, paragraph (n) of subdivision eight of section 11-652 or
paragraph one of subdivision (q) of section 11-641 of this chapter,
A. 10030 705
information relating to any royalty paid, incurred or received by such
taxpayer or related member to or from the other, including the treatment
of such payments by the taxpayer or the related member in any report or
return transmitted to the commissioner of finance under this title.
§ 11-689 Disposition of revenues. All revenues resulting from the
imposition of the taxes under this chapter shall be paid into the treas-
ury of the city and shall be credited to and deposited in the general
fund of the city, but no part of such revenues may be expended unless
appropriated in the annual budget of the city.
§ 11-690 Inconsistencies with other laws. If any provision of this
chapter is inconsistent with, in conflict with, or contrary to any other
provision of law, such provision of this chapter shall prevail over such
other provision and such other provision shall be deemed to have been
amended, superseded or repealed to the extent of such inconsistency,
conflict or contrariety.
CHAPTER 7
COMMERCIAL RENT OR OCCUPANCY TAX
§ 11-701 Definitions. When used in this chapter the following terms
shall mean or include:
1. "Person." An individual, partnership, society, association, joint
stock company, corporation, estate, receiver, assignee, trustee or any
other person acting in a fiduciary capacity, whether appointed by a
court or otherwise, and any combination of individuals.
2. "Landlord." A person who grants the right to use or occupy premises
to any lessee, sublessee, licensee or concessionaire, whether or not
such person is the owner of the premises.
3. "Tenant." A person paying or required to pay rent for premises as a
lessee, sublessee, licensee or concessionaire.
4. "Premises." Any real property or part thereof, and any structure
thereon or space therein.
5. "Taxable premises." Any premises in the city occupied, used or
intended to be occupied or used for the purpose of carrying on or exer-
cising any trade, business, profession, vocation or commercial activity,
including any premises so used even though it is used solely for the
purpose of renting, or granting the right to occupy or use, the same
premises in whole or in part to tenants.
6. "Rent." The consideration paid or required to be paid by a tenant
for the use or occupancy of premises, valued in money, whether received
in money or otherwise, including all credits and property or services of
any kind and including any payment required to be made by a tenant on
behalf of his or her landlord for real estate taxes, water rents or
charges, sewer rents or any other expenses, including insurance, normal-
ly payable by a landlord who owns the realty other than expenses for the
improvement, repair or maintenance of the tenant's premises.
7. "Base rent." The rent paid for each taxable premises by a tenant to
his or her landlord for a period, less the amounts received by or due
such tenant for the same period from any tenant of any part of such
premises:
(i) as rent for premises which constitute taxable premises of such
tenant except where such tenant is exempt from tax thereon pursuant to
subdivision b or paragraph six of subdivision c of section 11-704 of
this chapter; provided, however, that for tax periods beginning on and
after June first, nineteen hundred eighty-five, rent received or due
from a tenant exempt from tax thereon pursuant to paragraph two of
subdivision b of section 11-704 of this chapter, as such paragraph two
A. 10030 706
was in effect immediately prior to its amendment by local law number
fifty-seven for the year nineteen hundred ninety-three, may be deducted
if such tenant occupies or uses the premises pursuant to a written
agreement made prior to June first, nineteen hundred eighty-four, the
terms and conditions of which have not been changed or amended; and
provided, further, that for tax periods beginning on and after June
first, nineteen hundred eighty-five, with respect to a tenant exempt
from tax pursuant to paragraph two of subdivision b of section 11-704 of
this chapter, as such paragraph two was in effect immediately prior to
its amendment by local law number fifty-seven for the year nineteen
hundred ninety-three, because of the reduction in base rent provided for
in subdivision h of section 11-704 of this chapter, rent received or due
from such tenant may be deducted if such tenant occupies or uses the
premises pursuant to a written agreement made prior to June first, nine-
teen hundred eighty-five, the terms and conditions of which have not
been changed or amended; and provided, further, that for tax periods
beginning on and after June first, nineteen hundred ninety-four, with
respect to a tenant exempt from tax pursuant to paragraph two of subdi-
vision b of section 11-704 of this chapter as a result of the amendment
of such paragraph two by local law number fifty-seven for the year nine-
teen hundred ninety-three, whether or not such exemption is due to the
reduction in base rent provided for in subdivision h of section 11-704
of this chapter, rent received or due from such tenant may be deducted
if such tenant occupies or uses the premises pursuant to a written
agreement made prior to June first, nineteen hundred ninety-three, the
terms and conditions of which have not been changed or amended; and
provided, further, that for tax periods beginning on and after July
twenty-ninth, nineteen hundred eighty-seven, with respect to a tenant
exempt from tax pursuant to paragraph two of subdivision b of section
11-704 of this chapter because of the reduction in base rent provided
for in subdivision f of section 11-704 of this chapter, rent received or
due from such tenant may be deducted; and provided, further, that,
notwithstanding anything in this paragraph to the contrary, for tax
periods beginning on and after June first, nineteen hundred ninety-five,
with respect to a tenant exempt from tax pursuant to paragraph two of
subdivision b of section 11-704 of this chapter, rents received or due
from such tenant may be deducted;
(ii) as rent for premises which do not constitute taxable premises and
which are used by such tenant as lodging or residential premises,
including such residential premises in hotels, apartment hotels or lodg-
ing houses as defined in former title V of chapter forty-six of the code
of the preceding municipality;
(iii) who is exempt from tax under subdivision a of section 11-704 of
this chapter;
(iv) as rent for premises which do not constitute taxable premises
where such rent is, or to the extent that such rent is, deductible from
the base rent of such tenant by reason of paragraph five of subdivision
c of section 11-704 of this chapter; and
(v) as rent for premises which do not constitute taxable premises,
pursuant to a common law relationship of landlord and tenant, notwith-
standing the definition given to those terms by paragraphs two and three
of this section, except where it is received as rent, whether or not
such landlord-tenant relationship exists, for premises which are occu-
pied as or constitute:
(a) a locker, safe deposit box or beach cabana;
A. 10030 707
(b) storage space in part of a warehouse or in part of any other
structure or area in which goods are stored;
(c) garage space or parking space in any part of a garage, of a park-
ing lot or of a parking area where the entire garage, entire parking lot
or entire parking area accommodates more than two motor vehicles;
(d) an occupancy of a type which customarily has not been the subject
of such a common law relationship of landlord and tenant. Nothing
contained in this chapter shall be construed to permit a tenant to
deduct the same rent from his or her base rent more than once.
8. "Premises used for railroad transportation purposes." The portion
of any premises of any person actually operating a railroad, used by
such person for normal or necessary railroad transportation purposes.
The words normal or necessary railroad transportation purposes, as used
in this definition, shall not include any activities which are normally
carried on by persons not engaged in furnishing railroad transportation
service such as the operation of retail stores, barber shops, restau-
rants, theatres, hotels, and newsstands; nor shall such words include
any activities which are not deemed transportation purposes under
sections four hundred eighty-nine-b and four hundred eighty-nine-m of
the real property tax law.
9. "Premises used for air transportation purposes." The portion of any
premises, located within an airport or within an air transportation
terminal shared by more than one air line, of any person actually oper-
ating an air line as a common carrier, used by such person for normal or
necessary air transportation purposes. The words normal or necessary air
transportation purposes, as used in this definition, shall not include
any activities which are normally carried on by persons not engaged in
furnishing air transportation service such as the operation of retail
stores, barber shops, restaurants, theatres, hotels and newsstands.
10. "Return." Any return filed or required to be filed as herein
provided other than an information return.
11. "Tax period." The period for which any return is required to be
filed under this chapter.
12. "Tax year." June first of any calendar year through May thirty-
first of the following calendar year.
13. "Day." A calendar day or any part thereof.
14. "City." The city of Staten Island.
15. "Commissioner of finance." The commissioner of finance of the
city.
16. "Comptroller." The comptroller of the city.
17. "Dramatic or musical arts performance." A performance or repe-
tition thereof in a theatre, opera house or concert hall of a live
dramatic performance, whether or not musical in part. The performance
encompassed by this definition shall include so-called legitimate thea-
tre plays, musical comedies and operettas. They shall not include
circuses, ice skating shows or aqua shows; they shall not include
performances of any kind in a roof garden, cabaret or other similar
place; and they shall not include radio or television performances,
whether or not such performances are prerecorded for later broadcast.
18. "Premises used for omnibus transportation purposes." The portion
of any premises located within a passenger terminal of any person actu-
ally operating an omnibus line or route as a common carrier, used by
such person for normal or necessary omnibus line or route transportation
purposes. The words normal or necessary omnibus line or route transpor-
tation purposes, as used in this definition, shall not include any
activities, which are normally carried on by persons not engaged in
A. 10030 708
furnishing omnibus line or route transportation services such as the
operation of retail stores, barber shops, restaurants, theatres, hotels
and newsstands.
19. "Tax appeals tribunal." The tax appeals tribunal established by
section one hundred sixty-eight of the charter of the preceding munici-
pality as it existed January first, nineteen hundred ninety-four.
20. "Premises used for retail sales purposes." Premises primarily used
for the selling or otherwise disposing or furnishing of tangible goods
directly to the ultimate user or consumer.
§ 11-702 Imposition of tax. a. (1) For each tax year commencing on
or after June first, nineteen hundred sixty-three and ending on or
before May thirty-first, nineteen hundred seventy, every tenant shall
pay a tax of two and one-half per centum of his or her base rent for
such tax year where his or her base rent is not in excess of twenty-five
hundred dollars per year or where his or her base rent is for a period
of less than one year and would not exceed twenty-five hundred dollars
for a year if it were paid on an equivalent basis for an entire year or
a tax of five per centum of his or her base rent for such tax year where
his or her base rent is in excess of twenty-five hundred dollars per
year or where his or her base rent is for a period of less than one year
and would exceed twenty-five hundred dollars a year if it were paid on
an equivalent basis for an entire year.
(2) For each tax year commencing on or after, June first, nineteen
hundred seventy, every tenant shall pay a tax at the rates shown in the
following table:
When the annual rent is: But not more than: The rate shall be:
0..................... $2,499 2 1/2% of the rent
$ 2,500 or over....... $4,999 5% of the rent
$ 5,000 or over....... $7,999 6 1/4% of the rent
$ 8,000 or over....... $10,999 7% of the rent
$11,000 and over...... 7 1/2% of the rent
For tax years embraced within the period beginning after May thirty-
first, nineteen hundred seventy-seven and ending May thirty-first, nine-
teen hundred eighty, the tax shall be imposed at rates equal to ninety
percent of the rates shown in such table.
For tax years beginning after May thirty-first, nineteen hundred
eighty and ending May thirty-first, nineteen hundred eighty-one, the tax
shall be imposed at rates equal to eighty-five percent of the rates
shown in such table.
For tax years beginning after May thirty-first, nineteen hundred
eighty-one, the tax shall be imposed at rates equal to eighty percent of
the rates shown in such table.
Where the rent is for a period of less than one year, the rate shall
be determined by assuming that the rent is on an equivalent basis for
the entire year.
b. Nothing contained in this chapter shall be deemed to require
payment of a double or multiple tax pursuant to this chapter on any part
of any taxable premises.
c. Where a tenant pays an undivided rent for premises used both for
residential purposes and as taxable premises, the tax shall be applica-
ble to so much of the rent as is ascribable to the portion of such prem-
ises used as taxable premises. Where, however, the rent ascribable to
so much of such premises as is used as taxable premises does not exceed
fifty dollars a month, such rent shall be excluded from such tenant's
base rent. Nothing contained in this subdivision shall be construed as
indicating an intent to exclude any base rent from the tax imposed by
A. 10030 709
this chapter merely because it is paid as part of an undivided rent for
premises which are only partially used as taxable premises.
d. The tax imposed by this chapter shall be in addition to any and
all other taxes including the public housing tax imposed by chapter ten
of this title.
e. Nothing contained in this section shall be construed as permitting
base rent of a tenant for one taxable premises to be reduced by deduct-
ing rents received by him or her for another taxable premises of which
he or she is also a tenant.
§ 11-703 Presumptions and burden of proof. a. For the purpose of
the proper administration of this chapter and to prevent evasion of the
tax hereby imposed it shall be presumed that all premises are taxable
premises and that all rent paid or required to be paid by a tenant is
base rent until the contrary is established, and the burden of proving
that such presumptive base rent or any portion thereof is not included
in the measure of the tax imposed by this chapter shall be on the
tenant.
b. Where a tenant uses premises both for residential purposes and as
taxable premises and the tenant pays an undivided rent for the premises
so used, it shall be conclusively presumed against such tenant that the
rent ascribable to so much of such premises as is used as taxable prem-
ises shall be the amount which such tenant deducts as rent for such
premises in determining the tenant's federal income tax, as reduced by
any disallowance of such deduction which is not being contested, which
is fairly attributable to the tax period or tax year.
§ 11-704 Exemptions and deductions from base rent. a. The following
shall be exempt from the payment of the tax imposed by this chapter:
1. The state of New York, or any public corporation, including a
public corporation created pursuant to agreement or compact with another
state or the Dominion of Canada, improvement district or other political
subdivision of the state;
2. The United States of America, insofar as it is immune from taxa-
tion;
3. The United Nations or other world-wide international organizations
of which the United States of America is a member;
4. Any corporation, or association, or trust, or community chest, fund
or foundation, organized and operated exclusively for religious, chari-
table, or educational purposes, or for the prevention of cruelty to
children or animals, and no part of the net earnings of which inures to
the benefit of any private shareholder or individual and no substantial
part of the activities of which is carrying on propaganda, or otherwise
attempting to influence legislation; provided, however, that nothing in
this paragraph shall include an organization operated for the primary
purpose of carrying on a trade or business for profit, whether or not
all of its profits are payable to one or more organizations described in
this paragraph;
5. Any tenant who would be subject to taxes under this chapter aggre-
gating not more than one dollar for a tax year with respect to all taxa-
ble premises used by the tenant; and
6. Any tenant located in the "World Trade Center Area," as defined as
follows: the area in the borough of Manhattan bounded by Church Street
on the east starting at the intersection of Liberty Street and Church
Street; running northerly along the center line of Church Street to the
intersection of Church Street and Vesey Street; running westerly along
the center line of Vesey Street to the intersection of Vesey Street and
West Broadway; running northerly along the center line of West Broadway
A. 10030 710
to the intersection of West Broadway and Barclay Street; running wester-
ly along the center line of Barclay Street to the intersection of
Barclay Street and Washington Street; running southerly along the center
line of Washington Street to the intersection of Washington Street and
Vesey Street; running westerly along the center line of Vesey Street to
the intersection of Vesey Street and West Street; running southerly
along the center line of West Street to the intersection of West Street
and Liberty Street; running easterly along the center line of Liberty
Street to the intersection of Liberty Street and Washington Street;
running southerly along the center line of Washington Street to the
intersection of Washington Street and Albany Street; running easterly
along the center line of Albany Street to the intersection of Albany
Street and Greenwich Street; running northerly along the center line of
Greenwich Street to Liberty Street; and running easterly along the
center line of Liberty Street to the intersection of Liberty Street and
Church Street.
b. 1. A tenant who uses premises for no more than fourteen days in a
tax year whether or not consecutive, where his or her agreement with his
or her landlord does not require him or her to pay rent for a longer
period shall be exempt from the payment of the tax imposed by this chap-
ter in respect to the rent paid by him or her for such premises.
2. A tenant whose base rent, (i) for tax years beginning on or after
June first, nineteen hundred eighty-one and ending on or before May
thirty-first, nineteen hundred eighty-four, is not in excess of four
thousand nine hundred ninety-nine dollars per year, (ii) for the tax
year beginning June first, nineteen hundred eighty-four and ending May
thirty-first, nineteen hundred eighty-five, is not in excess of seven
thousand nine hundred ninety-nine dollars per year, (iii) for tax years
beginning on or after June first, nineteen hundred eighty-five and
ending on or before May thirty-first, nineteen hundred ninety-four, is
not in excess of ten thousand nine hundred ninety-nine dollars per year,
(iv) for the tax year beginning June first, nineteen hundred ninety-four
and ending May thirty-first, nineteen hundred ninety-five, is not in
excess of twenty thousand nine hundred ninety-nine dollars per year, (v)
for the tax year beginning June first, nineteen hundred ninety-five and
ending May thirty-first, nineteen hundred ninety-six, is not in excess
of thirty thousand nine hundred ninety-nine dollars per year, (vi) for
the tax year beginning June first, nineteen hundred ninety-six and
ending May thirty-first, nineteen hundred ninety-seven, is not in excess
of thirty-nine thousand nine hundred ninety-nine dollars per year, (vii)
for tax years beginning on or after June first, nineteen hundred nine-
ty-seven and ending on or before May thirty-first, two thousand, is not
in excess of ninety-nine thousand nine hundred ninety-nine dollars per
year, calculated without regard to any reduction in base rent allowed by
paragraph two of subdivision h of this section, (viii) for the period
beginning June first, two thousand and ending November thirtieth, two
thousand, is not in excess of ninety-nine thousand nine hundred ninety-
nine dollars per year, calculated without regard to any reduction in
base rent allowed by paragraph two of subdivision h of this section,
(ix) for the period beginning December first, two thousand and ending
May thirty-first, two thousand one, is not in excess of one hundred
forty-nine thousand nine hundred ninety-nine dollars per year, calcu-
lated without regard to any reduction in base rent allowed by paragraph
two of subdivision h of this section, and (x) for tax years beginning on
or after June first, two thousand one, is not in excess of two hundred
forty-nine thousand nine hundred ninety-nine dollars per year, calcu-
A. 10030 711
lated without regard to any reduction in base rent allowed by paragraph
two of subdivision h of this section, shall be exempt from the payment
of the tax imposed by this chapter with respect to such rent, provided,
however, that where the base rent of such tenant is for a period of less
than one year, such base rent shall, for purposes of this paragraph, be
determined as if it had been on an equivalent basis for the entire year;
and provided, further, that for purposes of subparagraphs (viii) and
(ix) of this paragraph, base rent for the period specified in each of
such subparagraphs shall be separately annualized as if it had been on
an equivalent basis for an entire year, irrespective of the actual base
rent for the tax year including the period specified in such subpara-
graph. Provided, however, (xi) a tenant whose base rent for the tax year
beginning June first, nineteen hundred eighty-four and ending May thir-
ty-first, nineteen hundred eighty-five, is at least eight thousand
dollars per year, but not in excess of ten thousand nine hundred nine-
ty-nine dollars per year, shall be exempt from the payment of the tax
imposed by this chapter with respect to such rent for the period begin-
ning December first, nineteen hundred eighty-four and ending May thir-
ty-first, nineteen hundred eighty-five, and (xii) a tenant whose base
rent for the tax year beginning June first, nineteen hundred ninety-five
and ending May thirty-first, nineteen hundred ninety-six, is at least
thirty-one thousand dollars per year, but not in excess of thirty-nine
thousand nine hundred ninety-nine dollars per year, shall be exempt from
the payment of the tax imposed by this chapter with respect to such rent
for the period beginning September first, nineteen hundred ninety-five
and ending May thirty-first, nineteen hundred ninety-six.
c. Base rent shall be reduced by the amount of the taxpayer's rent
for, or reasonably ascribable to, the taxpayer's own use of the prem-
ises:
1. As premises used for railroad transportation purposes.
2. As premises used for air transportation purposes.
3. As piers insofar as such premises are used in interstate or foreign
commerce.
4. Which are located in, upon, above or under any public street, high-
way or other public place, and which are defined as special franchise
property in the real property tax law.
5. Which are taxed pursuant to subchapter one of chapter twenty of
this title to the extent that such premises are subject to, and during
the period that they are subject to, such tax.
6. Which are taxed pursuant to subdivision b or c of section 11-1005
of this title.
7. Which are advertising signs, advertising space, vending machines or
newsstands within or attached to stations, platforms, stairways,
entranceways, passageways, mezzanines or tracks of a rapid transit
subway or elevated railroad operated by the New York city transit
authority when the rent of the tenant or of the tenant's landlord is
payable to such authority.
8. As premises used for omnibus transportation purposes.
9. As premises used for retail sales purposes where such premises are
located in the area in the borough of Manhattan bounded by Murray Street
on the north starting at the intersection of West Street and Murray
Street; running easterly along the center line of Murray Street,
connecting through City Hall Park with the center line of Frankfort
Street and running easterly along the center lines of Frankfort and
Dover Streets to the intersection of Dover Street and South Street;
running southerly along the center line of South Street to Peter Minuit
A. 10030 712
Plaza; connecting through Peter Minuit Plaza to the center line of State
Street and running northwesterly along the center line of State Street
to the intersection of State Street and Battery Place; running westerly
along the center line of Battery Place to the intersection of Battery
Place and West Street; and running northerly along the center line of
West Street to the intersection of West Street and Murray Street. Any
tax lot which is partly located inside such area shall be deemed to be
entirely located inside such area.
d. A tenant who uses taxable premises for renting to others for resi-
dential purposes to the extent of seventy-five per centum or more of the
rentable floor space shall be exempt from the tax imposed by this chap-
ter in respect to the rent paid for such premises from the time that
construction thereof commences, provided, however, that this paragraph
shall not be applicable to hotels, apartment hotels or lodging houses as
defined in former title V of chapter forty-six of the code of the
preceding municipality.
e. (1) A tenant who uses taxable premises for a dramatic or musical
arts performance for less than four weeks where there is no indication
prior to or at the time that such performance commences that the
performance is intended to continue for less than four weeks shall be
exempt from the tax imposed by this chapter with respect to the rent
paid for such taxable premises.
(2) (i) Notwithstanding any other provision of law to the contrary, a
tenant who uses taxable premises for the production and performance of a
theatrical work shall be exempt from the tax imposed by this chapter
with respect to the rent paid for such taxable premises for a period not
exceeding fifty-two weeks beginning on the date that the production of
such theatrical work commences, provided, however, that this subpara-
graph shall not apply to any theatrical work the production of which
commenced prior to June first, nineteen hundred ninety-five.
(ii) For purposes of this paragraph, the term "theatrical work" shall
mean a performance or repetition thereof in a theater of a live dramatic
performance, whether or not musical in part, that contains sustained
plots or recognizable thematic material, including so-called legitimate
theater plays or musicals, dramas, melodramas, comedies, compilations,
farces or reviews, provided that such performance is intended to be open
to the public for at least two weeks. The term "theatrical work" shall
not include performances of any kind in a roof garden, cabaret or simi-
lar place, circuses, ice skating shows, aqua shows, variety shows, magic
shows, animal acts, concerts, industrial shows or similar performances,
or radio or television performances, whether or not such performances
are pre-recorded for later broadcast.
f. 1. A tenant who is an eligible business and has obtained the
certifications required by paragraph four of this subdivision shall be
permitted to reduce his or her base rent for particular premises to
which he or she has relocated by an amount determined by multiplying
such base rent by a fraction the numerator of which is the number of
eligible aggregate employment shares maintained by such tenant with
respect to such premises in the tax year for which such tenant claims
the reduction and the denominator of which is a number equal to the
number of aggregate employment shares maintained by such tenant in such
premises in the tax year for which such tenant claims the reduction
allowed by this subdivision, provided, however, that such denominator
shall not exceed the highest number of aggregate employment shares main-
tained by such tenant in such premises in any of the tax years described
below which commence prior to or concurrently with the tax year for
A. 10030 713
which such tenant claims the reduction allowed by this subdivision: (i)
the tax year during which such tenant relocates to such particular prem-
ises; and (ii) each of the three tax years immediately succeeding the
tax year during which such tenant relocates to such premises. Base rent
for a particular premises may be reduced as provided in this subdivision
for the tax year during which the tenant relocates to such premises and
for any of the twelve immediately succeeding tax years during which the
tenant maintains eligible aggregate employment shares with respect to
such premises, provided, however, that there shall be no such reduction
with respect to base rent for any part of the tax year preceding the
date of relocation to such premises, and provided, further, however, in
the twelfth succeeding tax year there shall be a reduction only with
respect to base rent for the period, commencing on the first day of such
tax year, equal to the difference between the total number of days in
the tax year of relocation and the number of days in such tax year of
relocation commencing with and following the date of relocation, and
provided, further, that there shall be no such reduction with respect to
premises used for retail activity or hotel services.
2. (i) For purposes of this subdivision, the terms "eligible area,"
"eligible aggregate employment shares," "relocate," "retail activity"
and "hotel services" shall have the meanings ascribed by section 22-621
of the code of the preceding municipality, provided that whenever the
term "taxable year " appears in such section 22-621, such term shall be
read as "tax year," as the term "tax year" is defined in subdivision
twelve of section 11-701 of this chapter except when the taxable year
referred to is the taxable year immediately preceding the taxable year
during which such tenant relocates.
(ii) For purposes of this subdivision, the term "eligible business"
shall have the meaning ascribed by section 22-621 of the code of the
preceding municipality, provided that such term shall in addition
include any person subject to a tax imposed under subchapter four of
chapter six of this title and any person who is an insurance corporation
as defined in section one thousand five hundred of the tax law, which:
(A) has been conducting substantial business operations at one or more
business locations outside the eligible area for the twenty-four consec-
utive months immediately preceding the taxable year during which such
eligible business relocates; and (B) on or after May twenty-seventh,
nineteen hundred eighty-seven relocates all or part of such business
operations; and (C) on or after May twenty-seventh, nineteen hundred
eighty-seven first enters into a lease for the premises to which it
relocates or a parcel on which will be constructed such premises.
3. The reduction allowed by this subdivision may be claimed on an
estimated basis on the returns filed for the tax periods ending on the
last days of August, November and February of each year if, and to the
extent, permitted by regulations promulgated by the commissioner of
finance.
4. No tenant shall be authorized to receive a reduction in base rent
subject to tax under the provisions of this subdivision, until the prem-
ises with respect to which it is claiming a reduction in base rent meet
the requirements in the definition of eligible premises and until it has
obtained a certification of eligibility from the mayor or an agency
designated by the mayor, and an annual certification from the mayor or
an agency designated by the mayor as to the number of eligible aggregate
employment shares maintained by such tenant which may qualify for
obtaining a base rent reduction for the tenant's tax year. Any written
documentation submitted to the mayor or such agency or agencies in order
A. 10030 714
to obtain any such certification shall be deemed a written instrument
for purposes of section 175.00 of the penal law. Application fees for
such certifications shall be determined by the mayor or such agency or
agencies. No certification of eligibility shall be issued to an eligible
business on or after July first, two thousand three unless such business
meets the requirements of either subparagraph (a) or (b) of this para-
graph:
(a) (1) prior to such date such business has purchased, leased or
entered into a contract to purchase or lease particular premises or a
parcel on which will be constructed such premises or already owned such
premises or parcel;
(2) prior to such date improvements have been commenced on such prem-
ises or parcel which improvements will meet the requirements of subdivi-
sion (e) of section 22-621 of the code of the preceding municipality
relating to expenditures for improvements;
(3) prior to such date such business submits a preliminary application
for a certification of eligibility to such mayor or such agency or agen-
cies with respect to a proposed relocation to such particular premises;
and
(4) such business relocates to such particular premises not later than
thirty-six months or, in a case in which the expenditures made for the
improvements specified in clause two of this subparagraph are in excess
of fifty million dollars within seventy-two months from the date of
submission of such preliminary application; or
(b) (1) not later than June thirtieth, two thousand ten, such business
has purchased, leased or entered into a contract to purchase or lease
particular premises wholly contained in a building in which at least an
aggregate of forty per centum or two hundred thousand square feet,
whichever is less, of the nonresidential floor area of such building has
been purchased or leased by a business or businesses which meet or will
meet the requirements of subparagraph (a) of this paragraph with respect
to such floor area and which are or will become certified as eligible to
receive a credit under section 22-622 of the code of the preceding muni-
cipality with respect to such floor area;
(2) not later than June thirtieth, two thousand ten, such business
submits a preliminary application for a certification of eligibility to
such mayor or such agency or agencies with respect to a proposed relo-
cation to such particular premises; and
(3) not later than June thirtieth, two thousand ten, such business
relocates to such particular premises.
Any tenant subject to a tax imposed under chapter five, or subchapter
two, three or three-A of chapter six, of this title obtaining a certif-
ication of eligibility pursuant to subdivision (b) of section 22-622 of
the code of the preceding municipality shall be deemed to have obtained
the certification of eligibility required by this paragraph.
g. Whenever the rent paid by a tenant for his or her occupancy of
taxable premises is measured in whole or in part by the gross receipts
from the tenant's sales within such place, the tenant's rent, to the
extent paid on the basis of such gross receipts, shall be deemed not to
exceed fifteen percent of such gross receipts.
h. (1) In the case of any taxable premises located in the borough of
Manhattan north of the center line of ninety-sixth street or in the
boroughs of the Bronx, Brooklyn, Queens and Staten Island, the base rent
for such premises shall be reduced by ten percent for the period begin-
ning on January first, nineteen hundred eighty-six and ending May thir-
ty-first, nineteen hundred eighty-seven, by twenty percent for the peri-
A. 10030 715
od beginning June first, nineteen hundred eighty-seven and ending May
thirty-first, nineteen hundred eighty-nine, and by thirty percent for
the period beginning June first, nineteen hundred eighty-nine and ending
August thirty-first, nineteen hundred ninety-five, such reduction to be
made after all other exemptions and deductions authorized by this chap-
ter have been taken. For periods beginning September first, nineteen
hundred ninety-five and thereafter, a tenant of taxable premises located
in that part of the city specified in this paragraph shall be exempt
from the payment of the tax imposed by this chapter with respect to the
rent for such taxable premises.
(2) In the case of any taxable premises located in the borough of
Manhattan south of the center line of ninety-sixth street, the base rent
for such premises shall be reduced by (i) fifteen percent for the period
beginning March first, nineteen hundred ninety-six and ending May thir-
ty-first, nineteen hundred ninety-six, (ii) twenty-five percent for the
period beginning June first, nineteen hundred ninety-six and ending
August thirty-first, nineteen hundred ninety-eight, and (iii) thirty-
five percent for periods beginning September first, nineteen hundred
ninety-eight and thereafter, such reduction to be made after all other
exemptions and deductions authorized by this chapter have been taken.
i. (1) (a) (i) For purposes of, and to the extent relevant to, this
subdivision, the following terms shall, except to the extent hereinafter
modified, have the definitions assigned to such terms in section four
hundred ninety-nine-a of the real property tax law, and such definitions
shall apply with the same force and effect as if they had been set forth
in full in this subdivision: "abatement zone," "aggregate floor area,"
"applicant," "department of finance," "eligible building," "eligibility
period," "eligible premises," "expansion premises," "expansion tenant,"
"governmental agency," "landlord," "lease commencement date," "mixed-use
building," "new tenant," "person," "relocation area," "renewal tenant,"
"rent commencement date," "subtenant" and "tenant."
(ii) For purposes of this subdivision, the definitions assigned by
clause (i) of this subparagraph to the terms "eligible premises,"
"expansion tenant," "landlord," "new tenant" and "renewal tenant" shall
be modified as follows: (A) whenever the term "eligible building"
appears in any of such definitions, such term, notwithstanding anything
to the contrary, shall be deemed to include an eligible government-owned
building and, for purposes of subparagraph (b-2) of paragraph two of
subdivision i of this section, a non-residential or mixed-use building
located south of the center line of Canal Street in the borough of
Manhattan, regardless of when it received its initial certificate of
occupancy or initial temporary certificate of occupancy and regardless
of when it was constructed and shall be deemed to include an eligible
government-owned building; and (B) a reference in any of such defi-
nitions to a lease which meets the eligibility requirements of section
four hundred ninety-nine-c of the real property tax law shall be deemed
to include, in the case of a lease of premises in an eligible govern-
ment-owned building, a lease which meets the eligibility requirements of
paragraph four of this subdivision.
(b) When used in this subdivision, the following terms shall mean or
include: (i) "Eligible government-owned building." A building that
would be an eligible building, as such term is defined in section four
hundred ninety-nine-a of the real property tax law, but for the fact
that it is owned by a governmental agency.
(ii) "Eligible taxable premises." Taxable premises that are eligible
premises or expansion premises.
A. 10030 716
(iii) "Eligible tenant." A tenant with respect to whose lease of
eligible taxable premises there has been issued a certificate of abate-
ment or a certificate of eligibility.
(iv) "Base year." The twelve-month period that commences on the rent
commencement date.
(v) "Base rent for the base year." The total base rent for eligible
taxable premises for the base year, determined without regard to the
special reduction allowed by this subdivision.
(vi) "Certificate of abatement." The certificate of abatement issued
pursuant to section four hundred ninety-nine-d of the real property tax
law.
(vii) "Certificate of eligibility." The certificate of eligibility
issued pursuant to paragraph five of this subdivision.
(2) (a) An eligible tenant of eligible taxable premises shall be
allowed a special reduction in determining the taxable base rent for
such eligible taxable premises. Such special reduction shall be allowed
with respect to the rent for such eligible taxable premises for a period
not exceeding sixty months or, with respect to a lease commencing on or
after April first, nineteen hundred ninety-seven with an initial lease
term of less than five years, but not less than three years, for a peri-
od not exceeding thirty-six months, commencing on the rent commencement
date applicable to such eligible taxable premises, provided, however,
that in no event shall any special reduction be allowed for any period
beginning after March thirty-first, two thousand thirty-four. For
purposes of applying such special reduction, the base rent for the base
year shall, where necessary to determine the amount of the special
reduction allowable with respect to any number of months falling within
a tax period, be prorated by dividing the base rent for the base year by
twelve and multiplying the result by such number of months.
(a-1) Notwithstanding paragraph one of this subdivision, for purposes
of, and to the extent relevant to, the special reduction allowed by this
subparagraph, the definitions set forth in section four hundred ninety-
nine-aa of the real property tax law shall apply with the same force and
effect as if they had been set forth in full in this subdivision, except
as such definitions are hereinafter modified. An eligible tenant of
eligible taxable premises shall be allowed a special reduction in deter-
mining the taxable base rent for such eligible taxable premises,
provided, however, that (i) such eligible taxable premises are eligible
premises as defined in paragraph (c) of subdivision ten of section four
hundred ninety-nine-aa of the real property tax law, (ii) such eligible
taxable premises are located in the special garment center district
identified in the abatement zone defined in paragraph (c) of subdivision
two of section four hundred ninety-nine-aa of the real property tax law,
(iii) the lease for such eligible taxable premises commences within the
eligibility period applicable to the abatement zone defined in paragraph
(c) of subdivision two of section four hundred ninety-nine-aa of the
real property tax law, (iv) the lease for such eligible taxable premises
has an initial lease term of at least three years and (v) such special
reduction is limited to the benefit period, as defined in subdivision
five of section four hundred ninety-nine-aa of the real property tax
law, applicable to a lease commencing on or after July first, two thou-
sand five for eligible premises located within the abatement zone
defined in paragraph (c) of subdivision two of section four hundred
ninety-nine-aa of the real property tax law.
(a-2) The amount of the special reduction allowed by subparagraph
(a-1) of this paragraph shall be determined as follows: (i) For the
A. 10030 717
base year the amount of such special reduction shall be equal to the
base rent for the base year.
(ii) For the first through ninth twelve-month periods following the
base year the amount of such special reduction shall be equal to the
lesser of (A) the base rent for each such twelve-month period or (B) the
base rent for the base year.
(a-3) When used in this subdivision, for purposes of the special
reduction allowed by subparagraph (a-1) of this paragraph, the following
terms shall mean or include: (i) "Eligible taxable premises." Taxable
premises that are eligible premises or expansion premises.
(ii) "Eligible tenant." A tenant with respect to whose lease of eligi-
ble taxable premises there has been issued a certificate of abatement.
(iii) "Base year." The twelve-month period that commences on the rent
commencement date.
(iv) "Base rent for the base year." The total base rent for eligible
taxable premises for the base year, determined without the special
reduction allowed by subparagraph (a-1) of this paragraph.
(v) "Certificate of abatement." The certificate of abatement issued
pursuant to section four hundred ninety-nine-dd of the real property tax
law.
(b) Except as provided in subparagraphs (b-1) and (b-2) of this para-
graph, the amount of the special reduction allowed by this subdivision
shall be determined as follows: (i) For the base year the amount of
such special reduction shall be equal to the base rent for the base
year.
(ii) For the first and second twelve-month periods following the base
year the amount of such special reduction shall be equal to the lesser
of (A) the base rent for each such twelve-month period or (B) the base
rent for the base year.
(iii) For the third twelve-month period following the base year the
amount of such special reduction shall be equal to two-thirds of the
lesser of (A) the base rent for such twelve-month period or (B) the base
rent for the base year.
(iv) For the fourth twelve-month period following the base year the
amount of such special reduction shall be equal to one-third of the
lesser of (A) the base rent for such twelve-month period or (B) the base
rent for the base year.
(b-1) The amount of the special reduction allowed by this subdivision
with respect to a lease commencing on or after April first, nineteen
hundred ninety-seven with an initial lease term of less than five years,
but not less than three years, shall be determined as follows: (i) For
the base year the amount of such special reduction shall be equal to the
base rent for the base year.
(ii) For the first twelve-month period following the base year the
amount of such special reduction shall be equal to two-thirds of the
lesser of (A) the base rent for such twelve-month period or (B) the base
rent for the base year.
(iii) For the second twelve-month period following the base year the
amount of such special reduction shall be equal to one-third of the
lesser of (A) the base rent for such twelve-month period or (B) the base
rent for the base year.
(b-2) The amount of the special reduction allowed by this subdivision
with respect to a lease other than a sublease commencing between July
first, two thousand five and June thirtieth, two thousand twenty-seven
with an initial or renewal lease term of at least five years shall be
A. 10030 718
determined as follows: (i) For the base year the amount of such special
reduction shall be equal to the base rent for the base year.
(ii) For the first, second, third and fourth twelve-month periods
following the base year the amount of such special reduction shall be
equal to the lesser of (A) the base rent for each such twelve-month
period or (B) the base rent for the base year.
(c) For purposes of determining (i) whether a tenant is, pursuant to
the provisions of paragraph two of subdivision b of this section, exempt
from payment of the tax imposed by this chapter with respect to the base
rent for eligible taxable premises or (ii) whether, and the extent to
which, a tenant is eligible for the credit allowed pursuant to the
provisions of section 11-704.3 of this chapter with respect to eligible
taxable premises, the term "base rent" as used in such provisions shall
be the base rent as determined prior to the allowance of any special
reduction allowed by this subdivision.
(d) Notwithstanding anything to the contrary, for purposes of this
subdivision, expansion premises shall be treated as separate and
distinct from any other premises of the expansion tenant in the same
eligible building.
(3) The special reduction allowed by this subdivision shall be allowed
commencing on the rent commencement date; however, if the date of the
certificate of abatement or certificate of eligibility is later than the
rent commencement date, the tenant shall not, in the first instance,
claim the special reduction on any return required to be filed for a tax
period ending prior to the date of such certificate of abatement or
certificate of eligibility. If the date of such certificate of abatement
or certificate of eligibility falls in a tax period subsequent to the
tax period in which the rent commencement date falls, but both such
dates fall within the same tax year, the special reduction that was not
claimed in the first instance for any period preceding the date of such
certificate of abatement or certificate of eligibility shall be
reflected in the final return for the tax year. If the date of the
certificate of abatement or certificate of eligibility falls in the tax
year following the tax year in which the rent commencement date falls,
an amended final return shall be filed for such earlier tax year in
which shall be reflected any special reduction allowable for such tax
year; in addition, the final return for such later tax year shall
reflect any special reduction that was not claimed in the first instance
for any period in such tax year preceding the date of the certificate of
abatement or certificate of eligibility.
(4) (a) With respect to premises located in an eligible government-
owned building, no special reduction shall be allowed under this subdi-
vision unless: (i) the landlord enters into a lease for eligible prem-
ises with a new tenant or a renewal tenant and: (A) the lease
commencement date is within the eligibility period; and (B) (I) if, by
the sixtieth day following the rent commencement date, such new or
renewal tenant employs fifty or fewer employees in the eligible prem-
ises, the initial lease term is for a period of at least five years,
provided, however, that with respect to a lease commencing on or after
July first, nineteen hundred ninety-six if, by the sixtieth day follow-
ing the rent commencement date, such new or renewal tenant employs one
hundred twenty-five or fewer employees in the eligible premises, the
initial lease term is for a period of at least five years, and provided,
further, that with respect to a lease commencing on or after April
first, nineteen hundred ninety-seven if, by the sixtieth day following
the rent commencement date, such new or renewal tenant employs one
A. 10030 719
hundred twenty-five or fewer employees in the eligible premises, the
initial lease term is for a period of at least three years, or (II) if,
by the sixtieth day following the rent commencement date, such new or
renewal tenant employs more than fifty employees in the eligible prem-
ises, the initial lease term is for a period of at least ten years,
provided, however, that with respect to a lease commencing on or after
July first, nineteen hundred ninety-six if, by the sixtieth day follow-
ing the rent commencement date, such new or renewal tenant employs more
than one hundred twenty-five employees in the eligible premises, the
initial lease term is for a period of at least ten years; or
(ii) the landlord enters into a lease with an expansion tenant for
expansion premises and: (A) the lease commencement date is within the
eligibility period; (B) if the expansion premises are located in the
eligible building previously occupied by such expansion tenant, the
lease term for the premises in the eligible building previously occupied
by such expansion tenant will expire no earlier than the expiration date
of the initial lease term for the expansion premises, provided that
where such expansion tenant occupies premises in the eligible building
under more than one lease, the provisions of this subclause shall be
applied with reference to the lease for the premises containing the
largest amount of square feet, provided, however, that this subclause
shall not apply to a lease commencing on or after July first, nineteen
hundred ninety-six; and (C) (I) if, by the sixtieth day following the
rent commencement date, such expansion tenant employs fifty or fewer
employees in the eligible building in which the expansion premises are
located, the initial lease term for the expansion premises is for a
period of at least five years, provided, however, that with respect to a
lease commencing on or after July first, nineteen hundred ninety-six if,
by the sixtieth day following the rent commencement date, such expansion
tenant employs one hundred twenty-five or fewer employees in the expan-
sion premises, the initial lease term for the expansion premises is for
a period of at least five years, and provided, further, that with
respect to a lease commencing on or after April first, nineteen hundred
ninety-seven if, by the sixtieth day following the rent commencement
date, such expansion tenant employs one hundred twenty-five or fewer
employees in the expansion premises, the initial lease term for the
expansion premises is for a period of at least three years, or (II) if,
by the sixtieth day following the rent commencement date, such expansion
tenant employs more than fifty employees in such eligible building, the
initial lease term for the expansion premises is for a period of at
least ten years, provided, however, that with respect to a lease
commencing on or after July first, nineteen hundred ninety-six if, by
the sixtieth day following the rent commencement date, such expansion
tenant employs more than one hundred twenty-five employees in the expan-
sion premises, the initial lease term for the expansion premises is for
a period of at least ten years.
(b) Notwithstanding anything in this subdivision to the contrary, with
respect to premises located in an eligible government-owned building, no
certificate of eligibility shall be issued and no special reduction
shall be allowed under this subdivision if: (i) the tenant has relo-
cated to such premises from any area in the borough of Manhattan north
of the center line of 96th street or from any portion of the boroughs of
the Bronx, Brooklyn, Queens, or Staten Island; or (ii) the lease for
such premises provides that during the initial lease term required under
subparagraph (a) of this paragraph either the landlord or the tenant may
terminate such lease prior to the expiration of such required initial
A. 10030 720
lease term, provided that such lease may provide that either the land-
lord or the tenant may terminate such lease if (A) the other party is in
default of any of such party's obligations under the lease, (B) the
eligible premises are damaged or destroyed by fire or other casualty,
(C) the eligible premises are rendered unusable for any reason not
attributable to any act or failure to act of either tenant or landlord
or (D) the eligible premises are acquired by eminent domain.
(c) For purposes of this paragraph, the expiration date of a lease
shall be determined by the expiration date set forth in such lease,
without giving effect to any rights of the landlord or the tenant to
terminate such lease prior to the expiration date set forth therein.
(5) (a) (i) With respect to premises located in an eligible govern-
ment-owned building, an application for a certificate of eligibility
entitling a tenant to claim the special reduction allowed by this subdi-
vision shall be filed by such tenant with the department of finance on
or after the date on which the lease for the eligible premises is
executed by the landlord and tenant but in no event more than one
hundred eighty days following the later of the rent commencement date or
the date that chapter four of the laws of nineteen hundred ninety-five
became a law, and no such certificate of eligibility shall be issued
unless such application is filed within such time.
(ii) Notwithstanding clause (i) of this subparagraph and any other
provision of law to the contrary, with respect to a lease commencing on
or after July first, nineteen hundred ninety-six in premises located in
an eligible government-owned building, an application for a certificate
of eligibility entitling a tenant to claim the special reduction allowed
by this subdivision shall be filed by such tenant with the department of
finance on or after the date on which the lease for the eligible prem-
ises is executed by the landlord and tenant but in no event more than
one hundred eighty days following the rent commencement date or sixty
days following the date that the chapter of the laws of nineteen hundred
ninety-seven that added this clause became a law, whichever is later,
and no such certificate of eligibility shall be issued unless such
application is filed within such time.
(iii) Notwithstanding any other provisions of law to the contrary, an
application for the special reduction allowed by subparagraph (b-2) of
paragraph two of this subdivision shall be considered timely filed if
filed by such tenant with the department of finance on or after the date
on which the lease for the eligible premises is executed by the landlord
and tenant but in no event more than one hundred eighty days following
the rent commencement date or by May thirtieth, two thousand fourteen,
whichever is later, and no such special reduction shall be permitted
unless such application is filed within such time.
(b) In addition to any other information required by the department of
finance, such application for a certificate of eligibility shall include
(i) an abstract of the lease for the eligible taxable premises, which
shall include the lease commencement date, the rent commencement date
and the expiration date of such lease, (ii) a statement as to the number
of persons employed by the tenant in the eligible taxable premises and,
where applicable, in the eligible building containing such premises, by
the sixtieth day following the rent commencement date, (iii) a statement
as to the location of all office or retail space in the city occupied by
the tenant prior to the execution of the lease for the eligible taxable
premises and the commencement and expiration dates of all leases for
such office or retail space located in the abatement zone. Such applica-
tion shall also state that the tenant agrees to comply with and be
A. 10030 721
subject to such rules as may be issued from time to time by the depart-
ment of finance.
(c) The department of finance shall issue a certificate of eligibility
upon determining that an application filed pursuant to this paragraph
meets the requirements set forth in this subdivision, provided, however,
that no such certificate of eligibility shall be issued if any payments
in lieu of taxes, water or sewer charges or other lienable charges are
due and owing with respect to such eligible government-owned building at
the time such application is pending, unless such payments in lieu of
taxes or charges are at such time being paid in timely installments
pursuant to a written agreement with the department of finance or other
appropriate agency.
(d) The burden of proof shall be on the tenant to show by clear and
convincing evidence that the requirements for granting a certificate of
eligibility have been satisfied. The department of finance shall have
the authority to require that statements in connection with applications
pursuant to this paragraph be made under oath.
(e) The department of finance may provide by rule for the payment by
tenants of premises in eligible government-owned buildings of reasonable
administrative charges or fees necessary to defray expenses in
connection with the determination of initial and continuing eligibility
for the special reduction allowed by this subdivision.
(6) (a) If an eligible tenant (i) sublets any portion of the eligible
taxable premises to any other person, or (ii) otherwise ceases to occupy
or use any portion of the premises as eligible taxable premises, such
tenant shall, immediately upon the occurrence of any such event, cease
to be eligible for the special reduction allowed by this subdivision
with respect to the portion of the premises which is sublet or which
ceases to be occupied or used by such tenant as eligible taxable prem-
ises, and for any period following the occurrence of any such event, the
special reduction otherwise allowed by this subdivision shall be reduced
by an amount determined by multiplying the amount of such special
reduction by the percentage of the premises which is sublet or which has
ceased to be occupied or used as eligible taxable premises.
Such tenant shall give written notice of the occurrence of any such
event to the department of finance within thirty days thereof. If the
tenant fails to give such notice, an assessment of any additional tax
that may become due as a result of the occurrence of any such event may
be made at any time, notwithstanding anything in section 11-717 of this
chapter to the contrary.
(b) Notwithstanding anything in this chapter to the contrary, a tenant
claiming the special reduction allowed by this subdivision shall file a
return for each tax period with respect to which such special reduction
is claimed. Each such return shall contain a certification by the
tenant, in such form as the department of finance may prescribe, to the
effect that such tenant meets all the requirements of this subdivision,
and no special reduction shall be allowed if such return does not
contain such certification by such tenant.
(c) If any special reduction allowed under this subdivision was
obtained by a tenant as a result of having made a false or misleading
statement as to a material fact or having omitted to state any material
fact necessary in order to make such statement not false or misleading,
no such special reduction shall be allowed and any additional tax that
becomes due as a result of such disallowance may be assessed at any
time, notwithstanding anything in section 11-717 of this chapter to the
contrary. In addition, the department of finance may declare any such
A. 10030 722
tenant to be ineligible to claim any special reduction under this subdi-
vision in the future with respect to the same or any other premises.
7. A determination by the department of finance pursuant to subdivi-
sion six of section four hundred ninety-nine-f of the real property tax
law to deny, terminate or revoke any abatement applied for or granted
pursuant to title four of article four of the real property tax law
based on the relationship between the landlord and the tenant shall not
be dispositive of whether such tenant is eligible for a special
reduction under this subdivision. The department of finance may deter-
mine that such tenant is eligible for a special reduction under this
subdivision and may issue a certificate of eligibility to such tenant in
accordance with the procedures and pursuant to the standards applicable
to a tenant of premises located in an eligible government-owned build-
ing, provided, however, that any application filed pursuant to paragraph
five of this subdivision by a tenant whose application for a certificate
of abatement pursuant to title four of article four of the real property
tax law was denied by the department of finance pursuant to subdivision
six of section four hundred ninety-nine-f of the real property tax law
based on the relationship between the landlord and the tenant, or by a
tenant whose application for a certificate of abatement pursuant to
title four of article four of the real property tax law was granted by
the department of finance, but whose abatement was terminated or revoked
by the department of finance pursuant to subdivision six of section four
hundred ninety-nine-f of the real property tax law based on the
relationship between the landlord and the tenant, may be deemed by the
department of finance to have been filed on the date the application for
such certificate of abatement was filed. This paragraph shall only apply
to leases commencing on or after April first, nineteen hundred ninety-
seven.
§ 11-704.2 Special credit. A tenant whose base rent for the tax year
beginning June first, nineteen hundred ninety-three and ending May thir-
ty-first, nineteen hundred ninety-four is at least eleven thousand
dollars per year but not in excess of thirteen thousand nine hundred
ninety-nine dollars per year shall be allowed a credit against the tax
imposed by this chapter for such tax year, such credit shall be equal to
twenty-five percent of the tax imposed on such base rent for such tax
year. Where the base rent of a tenant is for a period of less than one
year, such base rent shall, for purposes of this section, be determined
as if it had been on an equivalent basis for the entire year. The credit
allowed under this section shall be deducted prior to the deduction of
any credit allowable under section 11-704.1 of this chapter.
§ 11-704.3 Tax credit. (a) (1) For the period beginning September
first, nineteen hundred ninety-five and ending May thirty-first, nine-
teen hundred ninety-six, a credit shall be allowed against the tax
imposed by this chapter, such credit to be determined in accordance with
the following table:
If the tenant's annualized The credit shall be an amount equal
base rent for such period is: to the following percentage of the
tax imposed on such annualized base
rent for such period:
At least: But not over:
$40,000 $44,999 80%
$45,000 $49,999 60%
$50,000 $54,999 40%
$55,000 $59,999 20%
A. 10030 723
If the tenant's annualized base rent for such period is over fifty-
nine thousand nine hundred ninety-nine dollars, no credit shall be
allowed under this paragraph.
(2) For the tax year beginning June first, nineteen hundred ninety-six
and ending May thirty-first, nineteen hundred ninety-seven, a credit
shall be allowed against the tax imposed by this chapter, such credit to
be determined in accordance with the following table:
If the tenant's base rent is: The credit shall be an amount equal
to the following percentage of the
tax imposed on such base rent for
the tax year:
At least: But not over:
$40,000 $44,999 80%
$45,000 $49,999 60%
$50,000 $54,999 40%
$55,000 $59,999 20%
If the tenant's base rent is over fifty-nine thousand nine hundred
ninety-nine dollars, no credit shall be allowed under this paragraph.
(3) For each tax year beginning on or after June first, nineteen
hundred ninety-seven and ending on or before May thirty-first, two thou-
sand, a credit shall be allowed against the tax imposed by this chapter,
such credit to be determined in accordance with the following table:
If the tenant's base rent is: The credit shall be an amount equal
to the following percentage of the
tax imposed by this chapter for the
tax year:
At least: But not over:
$100,000 $109,999 80%
$110,000 $119,999 60%
$120,000 $129,999 40%
$130,000 $139,999 20%
If the tenant's base rent is over one hundred thirty-nine thousand
nine hundred ninety-nine dollars, no credit shall be allowed under this
paragraph. For purposes of this paragraph, 'base rent' shall be calcu-
lated without regard to any reduction in base rent allowed by paragraph
two of subdivision h of section 11-704 of this chapter.
(4) For the period beginning June first, two thousand and ending
November thirtieth, two thousand, a credit shall be allowed against the
tax imposed by this chapter, such credit to be determined in accordance
with the following table:
If the tenant's annualized The credit shall be an amount equal
base rent for such period is: to the following percentage of the
tax imposed on such annualized base
rent for such period:
At least: But not over:
$100,000 $109,999 80%
$110,000 $119,999 60%
$120,000 $129,999 40%
$130,000 $139,999 20%
A. 10030 724
If the tenant's annualized base rent for such period is over one
hundred thirty-nine thousand nine hundred ninety-nine dollars, no credit
shall be allowed under this paragraph. For purposes of this paragraph
'base rent' shall be calculated without regard to any reduction in base
rent allowed by paragraph two of subdivision h of section 11-704 of this
chapter.
(5) For the period beginning December first, two thousand and ending
May thirty-first, two thousand one, a credit shall be allowed against
the tax imposed by this chapter, such credit to be determined in accord-
ance with the following table:
If the tenant's annualized The credit shall be an amount equal
base rent for such period is: to the following percentage of the
tax imposed on such annualized base
rent for such period:
At least: But not over:
$150,000 $159,999 80%
$160,000 $169,999 60%
$170,000 $179,999 40%
$180,000 $189,999 20%
If the tenant's annualized base rent for such period is over one
hundred eighty-nine thousand nine hundred ninety-nine dollars, no credit
shall be allowed under this paragraph. For purposes of this paragraph,
'base rent' shall be calculated without regard to any reduction in base
rent allowed by paragraph two of subdivision h of section 11-704 of this
chapter.
(6) For each tax year beginning on or after June first, two thousand
one, a credit shall be allowed against the tax imposed by this chapter
as follows: a tenant whose base rent is at least two hundred and fifty
thousand dollars but not more than three hundred thousand dollars shall
be allowed a credit in an amount determined by multiplying three and
nine-tenths percent of base rent by a fraction the numerator of which is
three hundred thousand dollars minus the amount of base rent and the
denominator of which is fifty thousand dollars. If the tenant's base
rent is over three hundred thousand dollars, no credit shall be allowed
under this paragraph. For purposes of this paragraph, 'base rent' shall
be calculated without regard to any reduction in base rent allowed by
paragraph two of subdivision h of section 11-704 of this chapter.
(b) (1) Where the base rent of a tenant is for a period of less than
one year, such base rent shall, for purposes of this section, be deter-
mined as if it had been on an equivalent basis for the entire year. The
credits allowed under this section shall be deducted prior to the
deduction of any credit allowable under section 11-704.1 of this chap-
ter.
(2) For purposes of paragraphs four and five of subdivision (a) of
this section, base rent for the period specified in each of such para-
graphs shall be separately annualized as if it had been on an equivalent
basis for an entire year, irrespective of the actual base rent for the
tax year including the period specified in such paragraph.
§ 11-704.4. Small business tax credit. a. As used in this section, the
following terms have the following meanings:
1. Income factor. The term "income factor" shall mean:
(i) for a tenant with total income of not more than five million
dollars, one;
A. 10030 725
(ii) for a tenant with total income of more than five million dollars
but not more than ten million dollars, a fraction the numerator of which
is ten million dollars minus the amount of total income and the denomi-
nator of which is five million dollars; and
(iii) for a tenant with total income of more than ten million dollars,
zero.
2. Rent factor. The term "rent factor" shall mean:
(i) for a tenant whose small business tax credit base rent is less
than five hundred thousand dollars, one; and
(ii) for a tenant whose small business tax credit base rent is at
least five hundred thousand dollars but not more than five hundred fifty
thousand dollars, a fraction the numerator of which is five hundred
fifty thousand dollars minus the amount of small business tax credit
base rent and the denominator of which is fifty thousand dollars.
3. Small business tax credit base rent. The term "small business tax
credit base rent" shall mean the base rent calculated without regard to
any reduction in base rent allowed by paragraph two of subdivision h of
section 11-704 of this chapter.
4. Total income. The term "total income" shall mean the amount
reported by a person, as defined by section seven thousand seven hundred
one of the internal revenue code, to the internal revenue service for
the purpose of the federal income tax in the tax year immediately
preceding the period for which the tenant is applying for the credit set
forth in subdivision b that is equal to the gross receipts or sales of
the person minus any returns and allowances, minus the cost of goods
sold plus the amount of any dividends, interest, gross rents, gross
royalties, capital gain net income, net gain or loss from the sale of
business property, net farm profit or loss, ordinary income or loss from
other partnerships, estates or trusts or other income or loss; except
that, if the tenant is a limited liability company or other business
entity that is not separate from its owner for federal income tax
purposes under section 301.7701-2(c)(2) of title 26 of the code of
federal regulations, total income as defined in this section shall mean
the total income of the person that reports the activities of the tenant
as its sole owner for federal income tax purposes.
b. Beginning on June first, two thousand eighteen and for each tax
year beginning thereafter, a credit shall be allowed against the tax
imposed by this chapter as follows: a tenant whose small business tax
credit base rent is at least two hundred fifty thousand dollars but not
more than five hundred fifty thousand dollars shall be allowed a credit
in the amount determined by multiplying the tax imposed on the tenant
pursuant to section 11-702 of this chapter minus any allowable credits
or exemptions set forth outside this section by the income factor and by
the rent factor. If the tenant's small business tax credit base rent is
over five hundred fifty thousand dollars, no credit shall be allowed
under this section.
c. The department of finance may promulgate any rules necessary to
implement the provisions of this section, including, but not limited to,
rules that prevent abuse of this section by related parties.
§ 11-705 Returns. a. Every tenant subject to tax under this chapter
shall file with the commissioner of finance a return with respect to the
taxes payable for the three month periods ending on the last days of
August, November and February of each year and a final return with
respect to the taxes payable for the tax year ending on the last day of
May of each year. Such returns shall be filed within twenty days from
the expiration of the period covered thereby. A tenant who is exempt
A. 10030 726
from the tax by reason of paragraph two of subdivision b of section
11-704 of this chapter shall nevertheless be required to file a final
return, provided, however, that for tax years beginning on or after June
first, nineteen hundred ninety-five and ending on or before May thirty-
first, nineteen hundred ninety-seven, no such final return shall be
required from such exempt tenant with respect to taxable premises if (1)
the tenant's rent for such premises, determined without regard to any
deduction from or reduction in rent or base rent allowed by this chap-
ter, does not exceed fifteen thousand dollars for the tax year and (2)
in the case of a tenant who has more than one taxable premises, the
aggregate rents for all such premises, determined without regard to any
deduction from or reduction in rent or base rent allowed by this chap-
ter, do not exceed fifteen thousand dollars for the tax year. For tax
years beginning on June first, nineteen hundred ninety-seven and ending
on or before May thirty-first, two thousand one, no such final return
shall be required from such exempt tenant with respect to any taxable
premises if (1) the tenant's rent for such premises, determined without
regard to any deduction from or reduction in rent or base rent allowed
by this chapter, does not exceed seventy-five thousand dollars for the
tax year and (2) the amount of rent received or due from any subtenant
of such exempt tenant with respect to such premises does not exceed
seventy-five thousand dollars for the tax year. For tax years beginning
on or after June first, two thousand one, no such final return shall be
required from such exempt tenant with respect to any taxable premises if
(1) the tenant's rent for such premises, determined without regard to
any deduction from or reduction in rent or base rent allowed by this
chapter, does not exceed two hundred thousand dollars for the tax year
and (2) the amount of rent received or due from any subtenant of such
exempt tenant with respect to such premises does not exceed two hundred
thousand dollars for the tax year. Notwithstanding anything in this
subdivision to the contrary, for tax periods beginning on or after
September first, nineteen hundred ninety-five, no return shall be
required pursuant to this subdivision with respect to any taxable prem-
ises located in that part of the city specified in paragraph one of
subdivision h of section 11-704 of this chapter, and no such taxable
premises shall be taken into account for purposes of clause two of this
subparagraph. The commissioner of finance may permit or require returns,
including final returns, to be made for other periods and upon such
dates as the commissioner may specify and if he or she deems it neces-
sary, in order to insure the payment of the tax imposed by this chapter,
the commissioner may require such returns to be made for shorter periods
than those prescribed by this subdivision of this section, and upon such
dates as he or she may specify.
b. The commissioner of finance may by regulation require the filing
of information returns and supplemental information returns by landlords
and by tenants of taxable premises, whether or not they are required to
pay the tax imposed by this chapter, upon such dates or at such times as
the commissioner may specify if he or she deems the filing of such
information returns necessary for proper administration of this chapter.
c. The form of returns and information returns shall be prescribed by
the commissioner of finance and shall contain such information as the
commissioner may deem necessary for the proper administration of this
chapter. The commissioner of finance may require amended returns or
amended information returns to be filed within twenty days after notice
and to contain the information specified in the notice.
A. 10030 727
d. If a return or information return is not filed, or if a return of
any kind when filed is incorrect or insufficient on its face, the
commissioner of finance shall take the necessary steps to enforce the
filing of such a return or of a corrected return.
§ 11-706 Payment of tax. a. The tax imposed by this chapter shall be
due and payable on or before the twentieth day of the calendar month
following the end of each tax period and shall be paid to the commis-
sioner of finance, as follows: The tax to be paid at such time shall be
based on the base rent for such tax period and the rate of tax shall be
the one which would be applicable if the base rent for such period were
the same for each tax period during the tax year, except that the
payment required to be made together with the final return or at the
time that the final return should be filed shall be the amount by which
the actual tax for the tax year exceeds the amounts previously paid for
the tax year.
b. Where the final return shows that the amount of tax paid for the
tax year exceeds the actual tax for such year, the commissioner of
finance shall make the appropriate refund as promptly as possible,
provided, however, that where the commissioner of finance has reason to
believe that the final return is inaccurate, the commissioner may with-
hold the refund in whole or in part. The making of a refund pursuant to
this subdivision shall not prevent the commissioner of finance from
making a determination that additional tax is due or from pursuing any
other method to recover the full amount of the actual tax due for the
tax year.
c. Where a tenant ceases to do business the tax, as measured by the
tenant's base rent for the prior part of the tax year, shall be due
immediately, and the tenant shall file a final return, but, should the
tenant continue to pay rent for the taxable premises, the tenant shall
file the normally required returns and a final return for the tax year,
provided, however, that any such tax payment shall be applied in
reduction of the tax payments required to be made with such returns or
with the final return for such tax year.
§ 11-707 Records to be kept. Every landlord of taxable premises and
every tenant of taxable premises shall keep records of rent paid and
received by him or her in such form as the commissioner of finance may
by regulation require, all leases or agreements which fix the rents or
rights of tenants of taxable premises, and such other records, receipts
and other papers relevant to the ascertainment of the tax due under this
chapter as the commissioner of finance may by regulation require. Such
records shall be offered for inspection and examination at any time upon
demand by the commissioner of finance. Such records, unless the commis-
sioner of finance consents to a sooner destruction or requires that they
be kept for a longer time, shall be preserved for a period of three
years except that leases or agreements which fix the rents or rights of
a tenant shall be kept for a period of three years after the expiration
of the tenancy thereunder.
§ 11-708 Determination of tax. If a return required by this chapter is
not filed, or if a return when filed is incorrect or insufficient, the
commissioner of finance shall determine the amount of tax due from such
information as may be obtainable and, if necessary, may estimate the tax
on the basis of external indices. Notice of such determination shall be
given to the person liable for the payment of the tax. Such determi-
nation shall finally and irrevocably fix the tax unless the person
against whom it is assessed, within ninety days after the giving of
notice of such determination or, if the commissioner of finance has
A. 10030 728
established a conciliation procedure pursuant to section 11-124 of this
title and the taxpayer has requested a conciliation conference in
accordance therewith, within ninety days from the mailing of a concil-
iation decision or the date of the commissioner's confirmation of the
discontinuance of the conciliation proceeding, both (1) serves a peti-
tion upon the commissioner of finance and (2) files a petition with the
tax appeals tribunal for a hearing, or unless the commissioner of
finance of the commissioner's own motion shall redetermine the same.
Such hearing and any appeal to the tax appeals tribunal sitting en banc
from the decision rendered in such hearing shall be conducted in the
manner and subject to the requirements prescribed by the tax appeals
tribunal pursuant to sections one hundred sixty-eight through one
hundred seventy-two of the charter of the preceding municipality as it
existed January first, nineteen hundred ninety-four. After such hearing
the tax appeals tribunal shall give notice of its decision to the person
against whom the tax is assessed and to the commissioner of finance. A
decision of the tax appeals tribunal sitting en banc shall be reviewable
for error, illegality or unconstitutionality or any other reason whatso-
ever by a proceeding under article seventy-eight of the civil practice
law and rules if application therefor is made to the supreme court by
the person against whom the tax was assessed within four months after
the giving of the notice of such tax appeals tribunal decision,
provided, however, that any such proceeding under article seventy-eight
of the civil practice law and rules shall not be instituted by a taxpay-
er unless: (a) the amount of any tax sought to be reviewed, with inter-
est and penalties thereon, if any, shall be first deposited and there is
filed an undertaking with the commissioner of finance, issued by a sure-
ty company authorized to transact business in this state and approved by
the superintendent of insurance of this state as to solvency and respon-
sibility, in such amount as a justice of the supreme court shall approve
to the effect that if such proceeding be dismissed or the tax confirmed
the taxpayer will pay all costs and charges which may accrue in the
prosecution of such proceeding or (b) at the option of the taxpayer such
undertaking may be in a sum sufficient to cover the taxes, interest and
penalties stated in such decision plus the costs and charges which may
accrue against it in the prosecution of the proceeding, in which event
the taxpayer shall not be required to pay such taxes, interest or penal-
ties as a condition precedent to the application.
§ 11-709 Refunds. a. In the manner provided in this section the
commissioner of finance shall refund or credit, without interest, any
tax, penalty or interest erroneously, illegally or unconstitutionally
collected or paid, if written application to the commissioner of finance
for such refund shall be made within eighteen months from the date fixed
by this chapter for filing the return on which such payment was based or
within six months of the payment thereof, whichever of such periods
expire the later. Whenever a refund or credit is made or denied, the
commissioner of finance shall state his or her reason therefor and give
notice thereof to the taxpayer in writing. The commissioner of finance
may, in lieu of any refund required to be made, allow credit therefor on
payments due from the applicant.
b. Any determination of the commissioner of finance denying a refund
or credit pursuant to subdivision a of this section shall be final and
irrevocable unless the applicant for such refund or credit, within nine-
ty days from the mailing of notice of such determination, or, if the
commissioner of finance has established a conciliation procedure pursu-
ant to section 11-124 of this title and the applicant has requested a
A. 10030 729
conciliation conference in accordance therewith, within ninety days from
the mailing of a conciliation decision or the date of the commissioner's
confirmation of the discontinuance of the conciliation proceeding, both
(1) serves a petition upon the commissioner of finance and (2) files a
petition with the tax appeals tribunal for a hearing. Such petition for
a refund or credit, made as herein provided, shall be deemed an applica-
tion for a revision of any tax, penalty or interest complained of. Such
hearing of any appeal to the tax appeals tribunal sitting en banc from
the decision rendered in such hearing shall be conducted in the manner
and subject to the requirements prescribed by the tax appeals tribunal
pursuant to section one hundred sixty-eight through one hundred seven-
ty-two of the charter of the preceding municipality as it existed Janu-
ary first, nineteen hundred ninety-four. After such hearing, the tax
appeals tribunal shall give notice of its decision to the applicant and
to the commissioner of finance. The applicant shall be entitled to
institute a proceeding pursuant to article seventy-eight of the civil
practice law and rules to review a decision of the tax appeals tribunal
sitting en banc if application to the supreme court be made therefor
within four months after the giving of notice of such decision, and
provided, in the case of an application by a taxpayer, that a final
determination of tax due was not previously made. Such a proceeding
shall not be instituted by a taxpayer unless an undertaking shall first
be filed with the commissioner of finance, in such amount and with such
sureties as a justice of the supreme court shall approve, to the effect
that if such proceeding be dismissed or the tax confirmed, the taxpayer
will pay all costs and charges which may accrue in the prosecution of
the proceeding.
c. A person shall not be entitled to a revision, refund or credit
under this section of a tax, interest or penalty which had been deter-
mined to be due pursuant to the provisions of section 11-708 of this
chapter where such person has had a hearing or an opportunity for a
hearing, as provided in said section, or has failed to avail himself or
herself of the remedies therein provided. No refund or credit shall be
made of a tax, interest or penalty paid after a determination by the
commissioner of finance made pursuant to section 11-708 of this chapter
unless it be found that such determination was erroneous, illegal or
unconstitutional, or otherwise improper, by the tax appeals tribunal
after a hearing, or, if such tax appeals tribunal affirms in whole or in
part the determination of the commissioner of finance, in a proceeding
under article seventy-eight of the civil practice law and rules, pursu-
ant to the provisions of said section, in which event refund or credit
without interest shall be made of the tax, interest or penalty found to
have been overpaid.
§ 11-710 Remedies exclusive. The remedies provided by this chapter
shall be the exclusive remedies available to any person for the review
of tax liability imposed by this chapter; and no determination or
proposed determination of tax or determination on any application for
refund by the commissioner of finance, nor any decision by the tax
appeals tribunal or any of its administrative law judges, shall be
enjoined or reviewed by an action for declaratory judgment, an action
for money had and received or by any action or proceeding other than, in
the case of a decision by the tax appeals tribunal sitting en banc, a
proceeding under article seventy-eight of the civil practice law and
rules; provided, however, that a taxpayer may proceed by declaratory
judgment if he or she institutes suit within thirty days after a defi-
ciency assessment is made and pays the amount of the deficiency assess-
A. 10030 730
ment to the commissioner of finance prior to the institution of such
suit and posts a bond for costs as provided in section 11-708 of this
chapter.
§ 11-711 Reserves. In cases where the taxpayer has applied for a
refund and has instituted a proceeding under article seventy-eight of
the civil practice law and rules to review a determination adverse to
the taxpayer on his or her application for refund, the comptroller shall
set up appropriate reserves to meet any decision adverse to the city.
§ 11-712 Proceedings to recover tax. a. Whenever any person shall
fail to pay any tax or penalty or interest imposed by this chapter as
herein provided, the corporation counsel shall, upon the request of the
commissioner of finance, bring or cause to be brought an action to
enforce payment of the same against the person liable for the same on
behalf of the city of Staten Island in any court of the state of New
York or of any other state or of the United States. If, however, the
commissioner of finance in his or her discretion believes that a
taxpayer subject to the provisions of this chapter is about to cease
business, leave the state or remove or dissipate the assets out of which
tax or penalties might be satisfied and that any such tax or penalty
will not be paid when due, he or she may declare such tax or penalty to
be immediately due and payable and may issue a warrant immediately.
b. As an additional or alternate remedy, the commissioner of finance
may issue a warrant, directed to the city sheriff commanding the sheriff
to levy upon and sell the real and personal property of such person
which may be found within the city, for the payment of the amount there-
of, with any penalties and interest, and the cost of executing the
warrant, and to return such warrant to the commissioner of finance and
to pay to the commissioner the money collected by virtue thereof within
sixty days after the receipt of such warrant. The city sheriff shall,
within five days after the receipt of the warrant, file with the county
clerk a copy thereof, and thereupon such clerk shall enter in the judg-
ment docket the name of the person mentioned in the warrant and the
amount of the tax, penalties and interest for which the warrant is
issued and the date when such copy is filed. Thereupon the amount of
such warrant so docketed shall become a lien upon the title to and
interest in real and personal property of the person against whom the
warrant is issued. The city sheriff shall then proceed upon the warrant
in the same manner and with like effect as that provided by law in
respect to executions issued against property upon judgments of a court
of record, and for services in executing the warrant the sheriff shall
be entitled to the same fees which the sheriff may collect in the same
manner. In the discretion of the commissioner of finance a warrant of
like terms, force and effect may be issued and directed to any officer
or employee of the department of finance, and in the execution thereof
such officer or employee shall have all the powers conferred by law upon
sheriffs, but he or she shall be entitled to no fee or compensation in
excess of the actual expenses paid in the performance of such duty. If
a warrant is returned not satisfied in full, the commissioner of finance
may from time to time issue new warrants and shall also have the same
remedies to enforce the amount due thereunder as if the city had recov-
ered judgment therefor and execution thereon had been returned unsatis-
fied.
c. Whenever there is made a sale, transfer or assignment in bulk of
any part or the whole of a stock of merchandise or of fixtures, or
merchandise and of fixtures pertaining to the conducting of the business
of the seller, transferor or assignor, otherwise than in the ordinary
A. 10030 731
course of trade and in the regular prosecution of said business, the
purchaser, transferee or assignee shall at least ten days before taking
possession of such merchandise, fixtures, or merchandise and fixtures,
or paying therefor, notify the commissioner of finance by registered
mail of the proposed sale and of the price, terms and conditions thereof
whether or not the seller, transferor or assignor, has represented to,
or informed the purchaser, transferee or assignee that it owes any tax
pursuant to this chapter and whether or not the purchaser, transferee or
assignee has knowledge that such taxes are owing, and whether any such
taxes are in fact owing.
Whenever the purchaser, transferee or assignee shall fail to give
notice to the commissioner of finance as required by the opening para-
graph of this subdivision, or whenever the commissioner of finance shall
inform the purchaser, transferee or assignee that a possible claim for
such tax or taxes exists, any sums of money, property or choses in
action, or other consideration, which the purchaser, transferee or
assignee is required to transfer over to the seller, transferor or
assignor shall be subject to a first priority right and lien for any
such taxes theretofore or thereafter determined to be due from the sell-
er, transferor or assignor to the city, and the purchaser, transferee or
assignee is forbidden to transfer to the seller, transferor or assignor
any such sums of money, property or choses in action to the extent of
the amount of the city's claim. For failure to comply with the
provisions of this subdivision, the purchaser, transferee or assignee,
in addition to being subject to the liabilities and remedies imposed
under the provisions of former section forty-four of the personal prop-
erty law, shall be personally liable for the payment to the city of any
such taxes theretofore or thereafter determined to be due to the city
from the seller, transferor or assignor, and such liability may be
assessed and enforced in the same manner as the liability for tax under
this chapter.
d. The commissioner of finance, if he or she finds that the interests
of the city will not thereby be jeopardized, and upon such conditions as
the commissioner of finance may require, may release any property from
the lien of any warrant or vacate such warrant for unpaid taxes, addi-
tions to tax, penalties and interest filed pursuant to subdivision b of
this section, and such release or vacating of the warrant may be
recorded in the office of any recording officer in which such warrant
has been filed. The clerk shall thereupon cancel and discharge as of the
original date of docketing the vacated warrant.
§ 11-713 General powers of the commissioner of finance. In addition
to the powers granted to the commissioner of finance in this chapter,
the commissioner is hereby authorized and empowered:
1. To make, adopt and amend rules and regulations appropriate to the
carrying out of this chapter and the purposes thereof;
2. To extend, for cause shown, the time for filing any return for a
period not exceeding ninety days; and to compromise disputed claims in
connection with the taxes hereby imposed;
3. To request information from the tax commission of the state on New
York or the treasury department of the United States relative to any
person; and to afford information to such tax commission or such treas-
ury department relative to any person;
4. To delegate the commissioner's functions pursuant to this section
to a deputy commissioner of finance or other employee or employees of
the commissioner's department;
A. 10030 732
5. To assess, determine, revise and adjust the taxes imposed under
this chapter;
6. To require any tenant who uses premises for both residential
purposes and as taxable premises and who pays an undivided rent for the
entire premises so used to provide the commissioner with a signed and
notarized request to the United States director of internal revenue for
photostatic copies of the tenant's income tax return for any year when
the commissioner deems such income tax return necessary to determine the
rent ascribable to so much of such premises as is used as taxable prem-
ises; and, if the tenant refuses to provide the commissioner with such a
signed written request, to treat the rent for the entire premises as the
rent for so much as is used as taxable premises;
7. To prescribe methods for determining how much of any tenant's base
rent is ascribable to a use which results in a reduction of the base
rent or for determining any other division of rent or of use of premises
necessary for the determination of the base rent or the amount of base
rent subject to tax under this chapter;
8. To authorize banks or trust companies which are depositories or
financial agents of the city to receive and give a receipt for any tax
imposed under this chapter in such manner, at such times, and under such
conditions as the commissioner of finance may prescribe; and the commis-
sioner of finance shall prescribe the manner, times and conditions under
which the receipt of such tax by such banks and trust companies is to be
treated as payment of such tax to the commissioner of finance.
§ 11-714 Administration of oaths and compelling testimony. a. The
commissioner of finance, the commissioner's employees duly designated
and authorized by the commissioner, the tax appeals tribunal and any of
its duly designated and authorized employees shall have power to admin-
ister oaths and take affidavits in relation to any matter or proceeding
in the exercise of their powers and duties under this chapter. The
commissioner of finance and the tax appeals tribunal shall have power to
subpoena and require the attendance of witnesses and the production of
books, papers and documents to secure information pertinent to the
performance of the duties of the commissioner or of the tax appeals
tribunal hereunder and of the enforcement of this chapter and to examine
them in relation thereto, and to issue commissions for the examination
of witnesses who are out of the state or unable to attend before the
commissioner or the tax appeals tribunal or excused from attendance.
b. A justice of the supreme court either in court or at chambers shall
have power summarily to enforce by proper proceedings the attendance and
testimony of witnesses and the production and examination of books,
papers and documents called for by the subpoena of the commissioner of
finance or the tax appeals tribunal under this chapter.
c. Cross-reference; criminal penalties. For failure to obey subpoenas
or for testifying falsely, see section 11-4007 of this title; for
supplying false or fraudulent information, see section 11-4002 of this
title.
d. The officers who serve the summons or subpoena of the commissioner
of finance or the tax appeals tribunal hereunder and witnesses attending
in response thereto shall be entitled to the same fees as are allowed to
officers and witnesses in civil cases in courts of record, except as
herein otherwise provided. Such officers shall be the city sheriff, and
the sheriff's duly appointed deputies or any officers or employees of
the department of finance or the tax appeals tribunal, designated to
serve such process.
A. 10030 733
§ 11-715 Interest and penalties. (a) Interest on underpayment; quar-
terly return. If any amount of tax required to be paid together with a
return, other than the final return for a tax year, is not paid on or
before the last date prescribed for payment, without regard to any
extension of time granted for payment, interest on such amount at the
rate set by the commissioner of finance pursuant to subdivision (h) of
this section, or, if no rate is set, at the rate of seven and one-half
percent per annum, shall be paid for the period from such last date
until twenty days after the end of the tax year during which such
payments were due or until such prior time as the tax paid for the tax
year equals seventy-five percent of the full tax required to be paid for
the tax year. Such interest shall be paid with the final return for the
tax year to which it relates. In computing the amount of interest to be
paid, such interest shall be compounded daily. Interest under this
subdivision shall not be paid if the amount thereof is less than one
dollar.
(b) Interest on underpayment; final return. If any amount of tax
required to be paid together with the final return for a tax year is not
paid on or before the last date prescribed for payment, without regard
to any extension of time granted for payment, interest on such amount at
the rate set by the commissioner of finance pursuant to subdivision (h)
of this section, or, if no rate is set, at the rate of seven and one-
half percent per annum, shall be paid for the period from such last date
to the date of payment. In computing the amount of interest to be paid,
such interest shall be compounded daily. Interest under this subdivision
shall not be paid if the amount thereof is less than one dollar.
(c) (1) Failure to file final return. (A) In case of failure to file
a final return under this chapter on or before the prescribed date,
determined with regard to any extension of time for filing, unless it is
shown that such failure is due to reasonable cause and not due to will-
ful neglect, there shall be added to the amount required to be shown as
tax on such return five percent of the amount of such tax if the failure
is for not more than one month, with an additional five percent for each
additional month or fraction thereof during which such failure contin-
ues, not exceeding twenty-five percent in the aggregate, and, in addi-
tion thereto, where a tenant, with respect to any taxable premises, is
exempt from tax by reason of paragraph two of subdivision b of section
11-704 of this chapter, there shall be imposed a penalty of one hundred
dollars.
(B) In the case of a failure to file a return of tax within sixty days
of the date prescribed for filing of such return, determined with regard
to any extension of time for filing, unless it is shown that such fail-
ure is due to reasonable cause and not due to willful neglect, the addi-
tion to tax under subparagraph (A) of this paragraph shall not be less
than the lesser of one hundred dollars or one hundred percent of the
amount required to be shown as tax on such return.
(C) For purposes of this paragraph, the amount of tax required to be
shown on the return shall be reduced by the amount of any part of the
tax which is paid on or before the date prescribed for payment of the
tax and by the amount of any credit against the tax which may be claimed
upon the return.
(2) Failure to pay tax shown on final return. In case of failure to
pay the amount shown as tax on a final return required to be filed under
this chapter on or before the prescribed date, determined with regard to
any extension of time for payment, unless it is shown that such failure
is due to reasonable cause and not due to willful neglect, there shall
A. 10030 734
be added to the amount shown as tax on such return one-half of one
percent of the amount of such tax if the failure is not for more than
one month, with an additional one-half of one percent for each addi-
tional month or fraction thereof during which such failure continues,
not exceeding twenty-five percent in the aggregate. For the purpose of
computing the addition for any month the amount of tax shown on the
return shall be reduced by the amount of any part of the tax which is
paid on or before the beginning of such month and by the amount of any
credit against the tax which may be claimed upon the return. If the
amount of tax required to be shown on a return is less than the amount
shown as tax on such return, this paragraph shall be applied by substi-
tuting such lower amount.
(3) Failure to pay tax required to be shown on final return. In case
of failure to pay any amount in respect of any tax required to be shown
on a final return required to be filed under this chapter which is not
so shown, including a determination made pursuant to section 11-708 of
this chapter, within ten days of the date of a notice and demand there-
for, unless it is shown that such failure is due to reasonable cause and
not due to willful neglect, there shall be added to the amount of tax
stated in such notice and demand one-half of one percent of such tax if
the failure is not for more than one month, with an additional one-half
of one percent for each additional month or fraction thereof during
which such failure continues, not exceeding twenty-five percent in the
aggregate. For the purpose of computing the addition for any month, the
amount of tax stated in the notice and demand shall be reduced by the
amount of any part of the tax which is paid before the beginning of such
month.
(4) Limitations on additions.
(A) With respect to any final return, the amount of the addition under
paragraph one of this subdivision shall be reduced by the amount of the
addition under paragraph two of this subdivision for any month to which
an addition applies under both such paragraphs one and two. In any case
described in subparagraph (B) of paragraph one of this subdivision, the
amount of the addition under such paragraph one shall not be reduced
below the amount provided in such subparagraph.
(B) With respect to any final return, the maximum amount of the addi-
tion permitted under paragraph three of this subdivision shall be
reduced by the amount of the addition under paragraph one of this subdi-
vision, determined without regard to subparagraph (B) of such paragraph
one, which is attributable to the tax for which the notice and demand is
made and which is not paid within ten days of such notice and demand.
(d) Underpayment due to negligence. (1) If any part of an underpayment
of tax is due to negligence or intentional disregard of this chapter or
any rules or regulations hereunder, but without intent to defraud, there
shall be added to the tax a penalty equal to five percent of the under-
payment.
(2) There shall be added to the tax, in addition to the amount deter-
mined under paragraph one of this subdivision, an amount equal to fifty
percent of the interest payable under subdivision (b) of this section
with respect to the portion of the underpayment described in such para-
graph one which is attributable to the negligence or intentional disre-
gard referred to in such paragraph one, for the period beginning on the
last date prescribed by law for payment of such underpayment, determined
without regard to any extension, and ending on the date of the assess-
ment of the tax, or, if earlier, the date of the payment of the tax.
A. 10030 735
(e) Underpayment due to fraud. (1) If any part of an underpayment of
tax is due to fraud, there shall be added to the tax a penalty equal to
fifty percent of the underpayment.
(2) There shall be added to the tax, in addition to the penalty deter-
mined under paragraph one of this subdivision, an amount equal to fifty
percent of the interest payable under subdivision (b) of this section
with respect to the portion of the underpayment described in such para-
graph one which is attributable to fraud, for the period beginning on
the last date prescribed by law for payment of such underpayment, deter-
mined without regard to any extension, and ending on the date of the
assessment of the tax, or, if earlier, the date of the payment of the
tax.
(3) The penalty under this subdivision shall be in lieu of any other
addition to tax imposed by subdivision (c) or (d) of this section.
(f) Additional penalty. Any person who, with fraudulent intent, shall
fail to pay any tax imposed by this chapter, or to make, render, sign or
certify any return, or to supply any information within the time
required by or under this chapter, shall be liable for a penalty of not
more than one thousand dollars, in addition to any other amounts
required under this chapter to be imposed, assessed and collected by the
commissioner of finance. The commissioner of finance shall have the
power, in his or her discretion, to waive, reduce or compromise any
penalty under this subdivision.
(g) The interest and penalties imposed by this section shall be paid
and disposed of in the same manner as other revenues from this chapter.
Unpaid interest and penalties may be enforced in the same manner as the
tax imposed by this chapter.
(h) (1) Authority to set interest rates. The commissioner of finance
shall set the rate of interest to be paid pursuant to subdivisions (a)
and (b) of this section, but if no such rate of interest is set, such
rate shall be deemed to be set at seven and one-half percent per annum.
Such rate shall be the same for each subdivision and shall be the rate
prescribed in paragraph two of this subdivision but shall not be less
than seven and one-half percent per annum. Any such rate set by the
commissioner of finance shall apply to taxes, or any portion thereof,
which remain or become due on or after the date on which such rate
becomes effective and shall apply only with respect to interest computed
or computable for periods or portions of periods occurring in the period
in which such rate is in effect.
(2) General rule. The rate of interest set under this subdivision
shall be the sum of (i) the federal short-term rate as provided under
paragraph three of this subdivision, plus (ii) seven percentage points.
(3) Federal short-term rate. For purposes of this subdivision:
(A) The federal short-term rate for any month shall be the federal
short-term rate determined by the United States secretary of the treas-
ury during such month in accordance with subsection (d) of section
twelve hundred seventy-four of the internal revenue code for use in
connection with section six thousand six hundred twenty-one of the
internal revenue code. Any such rate shall be rounded to the nearest
full percent, or, if a multiple of one-half of one percent, such rate
shall be increased to the next highest full percent.
(B) Period during which rate applies.
(i) In general. Except as provided in clause (ii) of this subpara-
graph, the federal short-term rate for the first month in each calendar
quarter shall apply during the first calendar quarter beginning after
such month.
A. 10030 736
(ii) Special rule for the month of September, nineteen hundred eight-
y-nine. The federal short-term rate for the month of April, nineteen
hundred eighty-nine shall apply with respect to setting the rate of
interest for the month of September, nineteen hundred eighty-nine.
(4) Publication of interest rate. The commissioner of finance shall
cause to be published in the City Record, and give other appropriate
general notice of, the interest rate to be set under this subdivision no
later than twenty days preceding the first day of the calendar quarter
during which such interest rate applies. The setting and publication of
such interest rate shall not be included within paragraph (a) of subdi-
vision five of section one thousand forty-one of the city charter of the
preceding municipality as it existed January first, nineteen hundred
ninety-four relating to the definition of a rule.
(i) Miscellaneous. (1) The certificate of the commissioner of finance
to the effect that a tax has not been paid, that a return has not been
filed, or that information has not been supplied pursuant to the
provisions of this chapter shall be prima facie evidence thereof.
(2) Cross-reference: For criminal penalties, see chapter forty of
this title.
(j) Substantial understatement of liability. If there is a substan-
tial understatement of tax for any tax year, there shall be added to the
tax an amount equal to ten percent of the amount of any underpayment
attributable to such understatement. For purposes of this subdivision,
there is a substantial understatement of tax for any tax year if the
amount of the understatement for the tax year exceeds the greater of ten
percent of the tax required to be shown on the final return for the tax
year or five thousand dollars. For purposes of this subdivision, the
term "understatement" means the excess of the amount of the tax required
to be shown on the final return for the tax year, over the amount of the
tax imposed which is shown on the return, reduced by any rebate. The
amount of such understatement shall be reduced by that portion of the
understatement which is attributable to the tax treatment of any item by
the taxpayer if there is or was substantial authority for such treat-
ment, or any item with respect to which the relevant facts affecting the
item's tax treatment are adequately disclosed in the return or in a
statement attached to the return. The commissioner of finance may waive
all or any part of the addition to tax provided by this subdivision on a
showing by the taxpayer that there was reasonable cause for the under-
statement, or part thereof, and that the taxpayer acted in good faith.
(k) Aiding or assisting in the giving of fraudulent returns, reports,
statements or other documents. (1) Any person who, with the intent that
tax be evaded, shall, for a fee or other compensation or as an incident
to the performance of other services for which such person receives
compensation, aid or assist in, or procure, counsel, or advise the prep-
aration or presentation under, or in connection with any matter arising
under this chapter of any return, report, statement or other document
which is fraudulent or false as to any material matter, or supply any
false or fraudulent information, whether or not such falsity or fraud is
with the knowledge or consent of the person authorized or required to
present such return, report, statement or other document shall pay a
penalty not exceeding ten thousand dollars.
(2) For purposes of paragraph one of this subdivision, the term
"procures" includes ordering, or otherwise causing, a subordinate to do
an act, and knowing of, and not attempting to prevent, participation by
a subordinate in an act. The term "subordinate" means any other person,
whether or not a director, officer, employee, or agent of the taxpayer
A. 10030 737
involved, over whose activities the person has direction, supervision,
or control.
(3) For purposes of paragraph one of this subdivision, a person
furnishing typing, reproducing, or other mechanical assistance with
respect to a document shall not be treated as having aided or assisted
in the preparation of such document by reason of such assistance.
(4) The penalty imposed by this subdivision shall be in addition to
any other penalty provided by law.
§ 11-716 Returns to be secret. a. Except in accordance with proper
judicial order or as otherwise provided by law, it shall be unlawful for
the commissioner of finance, the department of finance of the city, any
officer or employee of the department of finance of the city, any person
engaged or retained by such department on an independent contract basis,
the tax appeals tribunal, any commissioner or employee of such tribunal,
or any person who, pursuant to this section, is permitted to inspect any
return or to whom a copy, an abstract or a portion of any return is
furnished, or to whom any information contained in any return is
furnished, to divulge or make known in any manner any information relat-
ing to the business of a taxpayer contained in any return required under
this chapter. The officers charged with the custody of such returns
shall not be required to produce any of them or evidence of anything
contained in them in any action or proceeding in any court, except on
behalf of the commissioner of finance in an action or proceeding under
the provisions of this chapter, or on behalf of any party to any action
or proceeding under the provisions of this chapter when the returns or
facts shown thereby are directly involved in such action or proceeding,
in either of which events the courts may require the production of, and
may admit in evidence so much of said returns or of the facts shown
thereby, as are pertinent to the action or proceeding and no more.
Nothing in this subdivision shall be construed to prohibit the delivery
to a taxpayer or the taxpayer's duly authorized representative of a
certified copy of any return filed in connection with his or her tax;
nor to prohibit the delivery of such a certified copy of such return or
of any information contained in or relating thereto, to the United
States of America or any department thereof, the state of New York or
any department thereof, any agency or any department of the city of
Staten Island provided the same is requested for official business; nor
to prohibit the inspection for official business of such returns by the
corporation counsel or other legal representatives of the city or by the
district attorney of the county of Richmond; nor to prohibit the publi-
cation of statistics so classified as to prevent the identification of
particular returns or items thereof.
b. (1) Any officer or employee of the city who willfully violates the
provisions of subdivision a of this section shall be dismissed from
office and be incapable of holding any public office in this city for a
period of five years thereafter.
(2) Cross-reference: For criminal penalties, see chapter forty of this
title.
c. This section shall be deemed a state statute for purposes of para-
graph (a) of subdivision two of section eighty-seven of the public offi-
cers law.
d. Notwithstanding anything in subdivision a of this section to the
contrary, if a taxpayer has petitioned the tax appeals tribunal for
administrative review as provided in section one hundred seventy of the
charter of the preceding municipality as it existed January first, nine-
teen hundred ninety-four, the commissioner of finance shall be author-
A. 10030 738
ized to present to the tribunal any report or return of such taxpayer,
or any information contained therein or relating thereto, which may be
material or relevant to the proceeding before the tribunal. The tax
appeals tribunal shall be authorized to publish a copy or a summary of
any decision rendered pursuant to section one hundred seventy-one of the
charter of the preceding municipality as it existed January first, nine-
teen hundred ninety-four.
§ 11-717 Notices and limitation of time. a. Any notice authorized or
required under the provisions of this chapter may be given to the person
for whom it is intended by mailing it in a postpaid envelope addressed
to such person at the address given in the last return filed by such
person pursuant to the provisions of this chapter or in any application
made by such person or if no return has been filed or application made,
then to such address as may be obtainable. The mailing of a notice as in
this paragraph provided for shall be presumptive evidence of the receipt
of the same by the person to whom addressed. Any period of time which is
determined according to the provisions of this chapter by the giving of
notice shall commence to run from the date of mailing of such notice as
in this subdivision provided.
b. The provisions of the civil practice law and rules or any other law
relative to limitations of time for the enforcement of a civil remedy
shall not apply to any proceeding or action taken by the city to levy,
appraise, assess, determine or enforce the collection of any tax or
penalty provided by this chapter. However, except in the case of a
wilfully false or fraudulent return with intent to evade the tax, no
assessment of additional tax shall be made after the expiration of more
than three years from the date of the final return for the tax year to
which the assessment relates; provided, however, that where no return
has been made as provided by law, the tax may be assessed at any time.
c. Where before the expiration of the period prescribed herein for the
assessment of an additional tax, a person has consented in writing that
such period be extended, the amount of such additional tax due may be
determined at any time within such extended period. The period so
extended may be further extended by subsequent consents in writing made
before the expiration of the extended period.
d. If any return, claim, statement, notice, application, or other
document required to be filed, or any payment required to be made, with-
in a prescribed period or on or before a prescribed date under authority
of any provision of this chapter is, after such period or such date,
delivered by United States mail to the commissioner of finance, the tax
appeals tribunal, bureau, office, officer or person with which or with
whom such document is required to be filed, or to which or to whom such
payment is required to be made, the date of the United States postmark
stamped on the envelope shall be deemed to be the date of delivery. This
subdivision shall apply only if the postmark date falls within the
prescribed period or on or before the prescribed date for the filing of
such document, or for making the payment, including any extension grant-
ed for such filing or payment, and only if such document or payment was
deposited in the mail, postage prepaid, properly addressed to the
commissioner of finance, the tax appeals tribunal, bureau, office, offi-
cer or person with which or with whom the document is required to be
filed or to which or to whom such payment is required to be made. If any
document is sent by United States registered mail, such registration
shall be prima facie evidence that such document was delivered to the
commissioner of finance, the tax appeals tribunal, bureau, office, offi-
cer or person to which or to whom addressed, and the date of registra-
A. 10030 739
tion shall be deemed the postmark date. The commissioner of finance or,
where relevant, the tax appeals tribunal is authorized to provide by
regulation the extent to which the provisions of this subdivision with
respect to prima facie evidence of delivery and the postmark date shall
apply to certified mail. Except as provided in subdivision f of this
section, this subdivision shall apply in the case of postmarks not made
by the United States postal service only if and to the extent provided
by regulation of the commissioner of finance or, where relevant, the tax
appeals tribunal.
e. When the last day prescribed under authority of this chapter,
including any extension of time, for performing any act falls on a
Saturday, Sunday or legal holiday in the state, the performance of such
act shall be considered timely if it is performed on the next succeeding
day which is not a Saturday, Sunday or legal holiday.
f. (1) Any reference in subdivision d of this section to the United
States mail shall be treated as including a reference to any delivery
service designated by the secretary of the treasury of the United States
pursuant to section seventy-five hundred two of the internal revenue
code and any reference in subdivision d of this section to a United
States postmark shall be treated as including a reference to any date
recorded or marked in the manner described in section seventy-five
hundred two of the internal revenue code by a designated delivery
service. If the commissioner of finance finds that any delivery service
designated by such secretary is inadequate for the needs of the city,
the commissioner of finance may withdraw such designation for purposes
of this title. The commissioner of finance may also designate additional
delivery services meeting the criteria of section seventy-five hundred
two of the internal revenue code for purposes of this title, or may
withdraw any such designation if the commissioner of finance finds that
a delivery service so designated is inadequate for the needs of the
city. Any reference in subdivision d of this section to the United
States mail shall be treated as including a reference to any delivery
service designated by the commissioner of finance and any reference in
subdivision d of this section to a United States postmark shall be
treated as including a reference to any date recorded or marked in the
manner described in section seventy-five hundred two of the internal
revenue code by a delivery service designated by the commissioner of
finance. Notwithstanding the foregoing, any withdrawal of designation or
additional designation by the commissioner of finance shall not be
effective for purposes of service upon the tax appeals tribunal, unless
and until such withdrawal of designation or additional designation is
ratified by the president of the tax appeals tribunal.
(2) Any equivalent of registered or certified mail designated by the
United States secretary of the treasury, or as may be designated by the
commissioner of finance pursuant to the same criteria used by such
secretary for such designations pursuant to section seventy-five hundred
two of the internal revenue code, shall be included within the meaning
of registered or certified mail as used in subdivision d of this
section. If the commissioner of finance finds that any equivalent of
registered or certified mail designated by such secretary or the commis-
sioner of finance is inadequate for the needs of the city, the commis-
sioner of finance may withdraw such designation for purposes of this
title. Notwithstanding the provisions of this paragraph, any withdrawal
of designation or additional designation by the commissioner of finance
shall not be effective for purposes of service upon the tax appeals
A. 10030 740
tribunal, unless and until such withdrawal of designation or additional
designation is ratified by the president of the tax appeals tribunal.
§ 11-718 Construction and enforcement. This chapter shall be construed
in conformity with chapter two hundred fifty-seven of the laws of nine-
teen hundred sixty-three, pursuant to which it is enacted.
§ 11-719 Annual report. a. No later than September first, two thousand
twenty-five, and every September first thereafter, the department of
finance shall submit to the mayor and speaker of the council, and make
publicly available online, a report on the commercial rent tax. Such
report shall include the following information for the prior commercial
rent tax period, on the condition that any category that only includes
one taxpayer shall not be reported for any tax period:
1. the distribution of taxable premises and taxpayers by base rent
range, including the number and zip codes of the taxable premises for
which the commercial rent tax was collected, the number of taxpayers who
paid the tax, the number of taxpayers who paid the tax on more than one
property and the total amount of commercial rent tax paid for the set of
taxable premises and taxpayers within each range;
2. the distribution of taxable premises and taxpayers by industry,
including the number and zip codes of the taxable premises for which the
commercial rent tax was collected, the number of taxpayers who paid the
tax, the number of taxpayers who paid the tax on more than one property
and the total amount of commercial rent tax paid for the set of taxable
premises and taxpayers within each industry;
3. the total amount of tax collected and the average tax liability per
premises for each of the prior ten tax years;
4. the total amount of tax collected and the average tax liability per
taxpayer for each of the prior ten tax years;
5. a comparison of the total commercial rent tax collected to the
average market value of commercial properties in the city of Staten
Island as determined by the department for each of the prior ten tax
years;
6. the number of taxable premises and the number of taxpayers by base
rent range and industry who received the credit set forth in section
11-704.4 of this chapter; and
7. any other information deemed relevant for inclusion by the depart-
ment.
b. For purposes of the report required by subdivision a of this
section, the base rent ranges shall be:
1. between $250,000 and $274,999;
2. between $275,000 and $299,999;
3. between $300,000 and $349,999;
4. between $350,000 and $399,999;
5. between $400,000 and $449,999;
6. between $450,000 and $499,999;
7. between $500,000 and $549,999;
8. between $550,000 and $599,999;
9. between $600,000 and $699,999;
10. between $700,000 and $799,999;
11. between $800,000 and $899,999;
12. between $900,000 and $999,999;
13. between $1,000,000 and $1,999,999;
14. between $2,000,000 and $2,999,999;
15. between $3,000,000 and $3,999,999;
16. between $4,000,000 and $4,999,999;
17. between $5,000,000 and $9,999,999; and
A. 10030 741
18. more than $10,000,000.
CHAPTER 8
TAX ON COMMERCIAL MOTOR VEHICLES AND MOTOR VEHICLES
FOR TRANSPORTATION OF PASSENGERS
§ 11-801 Definitions. When used in this chapter, the following terms
shall mean or include:
1. "Person." An individual, partnership, corporation, joint-stock
company, society, association, receiver, lessee, trustee, estate, refer-
ee, assignee, or any other person acting in a fiduciary or represen-
tative capacity, whether appointed by a court or otherwise, and any
combination of individuals.
2. "Motor vehicle." Any vehicle operated upon a public highway or
public street propelled by any power other than muscular power.
3. "Commercial motor vehicle." (a) Each truck, tractor, trailer or
semi-trailer, and any other motor vehicle constructed or specially
equipped for the transportation of goods, wares and merchandise which is
commonly known as an auto truck or light delivery car;
(b) Any traction engine, road roller, tractor crane, truck crane,
power shovel, road building machine, snow plow, road sweeper, sand
spreader, well driller, or well servicing rig; and
(c) Any earth moving equipment as defined in the vehicle and traffic
law; provided that such motor vehicles are used principally in the city
or used principally in connection with a business carried on within the
city.
4. "Motor vehicle for transportation of passengers." (a) Any motor
vehicle licensed as a taxicab or as a coach, or any motor vehicle, not
so licensed, which carries passengers for compensation, including limou-
sine service, whether the compensation paid by or on behalf of the
passenger is based on mileage, trip, time consumed or any other basis;
and
(b) Any omnibus, except one operated pursuant to a franchise when,
under such franchise or under a contract, relating to transportation to
or from airports, with the port of New York authority, the holder of the
franchise pays to the city or to the port of New York authority a
percentage of its gross earnings or gross receipts or one used exclu-
sively in interstate commerce; provided such motor vehicles, as defined
in paragraph (a) or (b) of this subdivision, are used regularly, even
though not principally, in the city; and further provided that this
definition shall not be deemed to include any motor vehicle used princi-
pally for the transportation of children to and from schools and day
camps operated by non-profit agencies as defined in subdivision four of
section 11-803 of this chapter, any motor vehicle used exclusively for
transportation of persons in connection with funerals or any motor vehi-
cle for transportation of passengers where neither the owner of such
motor vehicle nor any person or business engaged in transporting passen-
gers by motor vehicle for-hire that is affiliated with such owner has a
place of business in such city, a telephone number in such city, or
solicits business or specifically advertises in such city.
5. "Owner." Any person owning a commercial motor vehicle or a motor
vehicle for the transportation of passengers and shall include a
purchaser under a reserve title contract, conditional sales agreement or
vendor's lien agreement. In addition, an owner shall be deemed to
include any lessee, licensee or bailee having the exclusive use of a
commercial motor vehicle or a vehicle for the transportation of passen-
gers, under a lease or otherwise, for a period of thirty days or more.
A. 10030 742
6. "Omnibus." Any motor vehicle for transportation of passengers for
hire having a seating capacity of more than seven persons.
7. "Use." Any use of a motor vehicle upon the public highways or
streets of the city.
8. "Maximum gross weight." The weight of the motor vehicle plus the
weight of the maximum load to be carried, if any, by such vehicle.
9. "Registered owner." The person who registers a motor vehicle as
owner thereof pursuant to the registration requirements of the vehicle
and traffic law of the state of New York.
10. "Registration fee." The full annual fee or charge prescribed in
the vehicle and traffic law of the state of New York for the registra-
tion of a motor vehicle.
11. "City." The city of Staten Island.
12. "Comptroller." The comptroller of the city.
13. "Commissioner of finance." The commissioner of finance of the
city.
14. "Tax year." June first of any calendar year through May thirty-
first of the following calendar year.
15. "Medallion taxicab." A motor vehicle for transportation of passen-
gers which is duly licensed as a taxicab by the taxi and limousine
commission and permitted to accept hails from passengers in the street.
16. "Tax appeals tribunal." The tax appeals tribunal established by
section one hundred sixty-eight of the charter of the preceding munici-
pality as it existed January first, nineteen hundred ninety-four.
17. "Commissioner of motor vehicles." The commissioner of motor vehi-
cles of the state of New York.
18. "Taxi and limousine commission." The New York city taxi and limou-
sine commission.
§ 11-802 Imposition of tax. a. In addition to any and all other taxes,
including the compensating use tax, there is hereby imposed and there
shall be paid annually for each tax year beginning June first, nineteen
hundred sixty, a tax on the use in the city of motor vehicles to be paid
by the owners of such vehicles as follows:
1. (A) For tax years ending on or before May thirty-first, nineteen
hundred seventy-two, on commercial vehicles, twenty dollars for each
such vehicle having a maximum gross weight of five tons or less, and
thirty dollars for each such vehicle having a maximum gross weight of
more than five tons, provided, however, that for each such vehicle
having a registration fee prescribed in the vehicle and traffic law of
the state of New York which is less than twenty dollars, the tax shall
be an amount equal to such registration fee;
(B) For tax years beginning on and after June first, nineteen hundred
seventy-two but before June first, nineteen hundred ninety, on commer-
cial vehicles, forty dollars for each such vehicle having a maximum
gross weight of five tons or less, and sixty dollars for each such vehi-
cle having a maximum gross weight of more than five tons, provided,
however, that for each such vehicle having a registration fee prescribed
in the vehicle and traffic law of the state of New York which is less
than forty dollars, the tax shall be an amount equal to such registra-
tion fee.
(C) For tax years beginning on and after June first, nineteen hundred
ninety, on commercial vehicles, forty dollars for each such vehicle
having a maximum gross weight of ten thousand pounds or less, two
hundred dollars for each such vehicle having a maximum gross weight of
more than ten thousand pounds but not more than twelve thousand five
hundred pounds, two hundred seventy-five dollars for each such vehicle
A. 10030 743
having a maximum gross weight of more than twelve thousand five hundred
pounds but not more than fifteen thousand pounds and three hundred
dollars for each such vehicle having a maximum gross weight of more than
fifteen thousand pounds, provided, however, that for each such vehicle
having a registration fee prescribed in the vehicle and traffic law of
the state of New York which is less than forty dollars, the tax shall be
an amount equal to such registration fee.
2. (A) For tax years ending on or before May thirty-first, nineteen
hundred ninety, on motor vehicles for the transportation of passengers
other than medallion taxicabs, and for tax years ending on or before May
thirty-first, nineteen hundred eighty-nine, on medallion taxicabs, one
hundred dollars for each such vehicle.
(B) For the tax year beginning June first, nineteen hundred eighty-
nine and ending May thirty-first, nineteen hundred ninety, on medallion
taxicabs, five hundred dollars for each such vehicle.
(C) For tax years beginning on and after June first, nineteen hundred
ninety but before May thirty-first, two thousand nineteen, on medallion
taxicabs, one thousand dollars for each such vehicle, and on all other
motor vehicles for transportation of passengers, four hundred dollars
for each such vehicle.
(D) For tax years beginning on or after June first, two thousand nine-
teen, on all motor vehicles for transportation of passengers, including
medallion taxicabs, four hundred dollars for each such vehicle.
b. To the extent that the tax as imposed by subdivision a of this
section may be invalid solely because it is based on the use in the city
of the motor vehicles, the tax shall also be deemed to be based on the
privilege of using the public highways or streets of the city by such
motor vehicle. Under such circumstances the rate of tax shall be the
same and all other provisions of this chapter shall be equally applica-
ble.
c. If the first use of any motor vehicle subject to the tax imposed
under this chapter occurs on or after December first and before March
first in any tax year, the tax for that year shall be one-half of the
tax hereinabove provided; and, if the first such use occurs on or after
March first in any tax year, the tax for that tax year shall be one-
fourth of such tax.
d. In applying the tax on commercial motor vehicles with respect to
tractors, trailers and semi-trailers, the tax shall be measured by the
weight of the tractor plus the maximum gross weight of the trailer or
semi-trailer with the greatest such maximum gross weight to be drawn by
such tractor. No trailer or semi-trailer shall be subject to any sepa-
rate or additional tax under this chapter.
§ 11-803 Exemptions. The provisions of this chapter shall not apply
to motor vehicles owned and operated, or leased for their exclusive use
by:
1. The state of New York, or any public corporation, including a
corporation created pursuant to agreement or compact with another state
or the Dominion of Canada, improvement district or other political
subdivision of the state;
2. The United States of America;
3. The United Nations or other world-wide international organizations
of which the United States of America is a member;
4. Any corporation, or association, or trust, or community chest, fund
or foundation, organized and operated exclusively for religious, chari-
table or educational purposes, or for the prevention of cruelty to chil-
dren or animals, and no part of the net earnings of which inures to the
A. 10030 744
benefit of any private shareholder or individual and no substantial part
of the activities of which is carrying on propaganda, or otherwise
attempting to influence legislation; provided, however, that nothing in
this subdivision shall include an organization operated for the primary
purpose of carrying on a trade or business for profit, whether or not
all of its profits are payable to one or more organizations described in
this subdivision;
5. Any foreign nation or representative of a foreign nation with
respect to motor vehicles for which they need not pay a registration fee
under the provisions of the vehicle and traffic law;
6. Dealers in new and used motor vehicles where the use of the motor
vehicle is confined solely to demonstrations to prospective customers or
to delivery by or to the dealer and the vehicle bears dealer's license
plates.
§ 11-804 Presumption and burden of proof. For the purpose of the
proper administration of this chapter and to prevent evasion of the tax
hereby imposed, it shall be presumed that all motor vehicles used in the
city of the types described in paragraphs (a), (b) and (c) of subdivi-
sion three of section 11-801 of this chapter are used principally in the
city or used principally in connection with a business carried on within
the city and are subject to the tax until the contrary is established;
and it shall be presumed that all motor vehicles used in the city of the
types described in paragraphs (a) and (b) of subdivision four of section
11-801 of this chapter are used regularly, even though not principally
in the city and are subject to the tax until the contrary is estab-
lished. The burden of proving that a motor vehicle is not taxable under
this chapter shall be on the owner of the motor vehicle.
§ 11-805 Records to be kept. Every owner of a motor vehicle subject
to tax under this chapter shall keep such records of his or her vehicles
and of their use in the city in such form as the commissioner of finance
may by regulation require. Such records shall be offered for inspection
and examination at any time upon demand by the commissioner of finance
or the commissioner's duly authorized agent or employee and shall be
preserved for a period of three years except that the commissioner of
finance may consent to their destruction within that period or may
require that they be kept longer.
§ 11-806 Registration. a. By July thirteenth, nineteen hundred sixty
or, upon acquiring any motor vehicle subject to tax hereunder after such
date, within two days of such acquisition, every owner shall file with
the commissioner of finance a certificate of registration in such form
as prescribed by the commissioner of finance.
b. In order to determine whether motor vehicles are subject to the tax
under this chapter and to facilitate administration thereof an informa-
tion registration certificate in such form as is prescribed by the
commissioner of finance shall be filed with the commissioner of finance
by any person who owns or acquires:
1. A motor vehicle of a type described in paragraph (a), (b) or (c) of
subdivision three of section 11-801 of this chapter which is registered
in the city under the vehicle and traffic law or is used in the city in
connection with a business carried on within the city; or
2. A motor vehicle of the type described in paragraphs (a) and (b) of
subdivision four of section 11-801 of this chapter which is registered
in the city under the vehicle and traffic law or is used in the city.
Such an information registration certificate shall be filed by July
thirteenth, nineteen hundred sixty or, if a motor vehicle is acquired
after such date, within two days after such acquisition. An information
A. 10030 745
registration certificate, however, need not be filed with respect to any
motor vehicle for which a registration certificate has been filed pursu-
ant to subdivision a of this section. The commissioner of finance may,
by regulation, provide that information registration certificates need
not be filed with respect to a type of motor vehicle or with respect to
any general group within a type of motor vehicle.
§ 11-807 Returns. a. On or before the twentieth day of June in each
year commencing with the year nineteen hundred sixty, every owner of a
motor vehicle subject to tax under this chapter shall file a return with
the commissioner of finance. A supplemental return shall also be filed
by every owner with regard to each motor vehicle subject to tax acquired
during any tax year at a time subsequent to the filing of the owner's
regular return. Such supplemental return shall be filed with the
commissioner of finance within a stated time, as fixed by regulation of
the commissioner of finance, after the acquisition of the motor vehicle.
An owner who acquires a motor vehicle subject to the tax after the
commencement of a tax year and who has not filed a return or supple-
mental return with respect to such motor vehicle shall file a return
with respect to it within two days after its acquisition by the owner.
b. The commissioner of finance, by regulation, may require that each
person required under this chapter to file an information registration
certificate file an information return with the commissioner of finance
annually or at such other times as the commissioner deems appropriate
for proper administration of this chapter. The commissioner of finance
may, by regulation, provide that information returns need not be filed
or that they be filed at different times with respect to a type of motor
vehicle or with respect to any general group within a type of motor
vehicle or with respect to any particular circumstances.
c. The commissioner of finance may permit or require returns, supple-
mental returns or information returns to be filed at times other than
those specified in the commissioner's regulations. If the commissioner
deems it necessary in order to insure payment of the tax imposed by this
chapter, the commissioner of finance may require any return, supple-
mental return or information return to be filed with him or her at a
time other than that fixed by such commissioner.
d. The form of returns, supplemental returns and information returns
shall be prescribed by the commissioner of finance and shall contain
such information as the commissioner may deem necessary for the proper
administration of this chapter. The commissioner of finance may require
amended returns, amended supplemental returns or amended information
returns to be filed within twenty days after notice and to contain the
information specified in the notice.
e. If a return, supplemental return or information return is not
filed, or if a return of any kind when filed is incorrect or insuffi-
cient on its face, the commissioner of finance shall take the necessary
steps to enforce the filing of such a return or of a corrected return.
§ 11-808 Payment of tax. a. At the time of filing a return or supple-
mental return the owner shall pay to the commissioner of finance the tax
imposed by this chapter. Such tax shall be due and payable on the last
day on which such return or supplemental return is required to be filed,
regardless of whether such a return is filed or whether the return which
is filed correctly indicates the amount of tax due.
b. Where an owner of a motor vehicle subject to tax under this chapter
replaces it with another motor vehicle during a tax year, the owner
shall be entitled, upon approval by the commissioner of finance, to have
any tax paid with respect to the replaced vehicle credited toward the
A. 10030 746
tax payable with respect to the replacement vehicle for the balance of
such tax year, and the owner shall pay no additional tax for such tax
year with respect to it unless its nature or its maximum gross weight
requires the payment of a higher amount of tax than that paid with
respect to the replaced vehicle. A supplemental return, where required,
shall be filed with respect to a replacement vehicle irrespective of
whether additional tax is payable. Upon the grant of a waiver of tax by
the commissioner of finance a purchaser of a motor vehicle subject to
tax under this chapter who purchases it during a tax year from an owner
who has paid the tax shall not be required to pay the tax with respect
to such motor vehicle for the balance of such tax year if, and only if,
the owner obtains, and submits to the commissioner of finance together
with his or her return or supplemental return, a certificate or its
equivalent, as prescribed by the commissioner of finance, signed by the
prior owner to the effect that the prior owner has not had the tax paid
credited toward any replacement vehicle and will not seek to obtain such
a credit for any replacement vehicle purchased in the future. Nothing
contained in this subdivision shall be deemed to authorize a refund
merely because a motor vehicle with respect to which the tax has been
paid is sold or otherwise disposed of during the course of the tax year.
c. Notwithstanding any other provision of law to the contrary, the tax
imposed on medallion taxicabs pursuant to subparagraph (C) of paragraph
two of subdivision a of section 11-802 of this chapter shall be due and
payable in two equal installments, the first of which shall be due and
payable on or before the last day on which the return or supplemental
return for the tax year is required to be filed, and the second of which
shall be due and payable on or before the first day of December in such
tax year; provided, however, that if a medallion taxicab is acquired
subsequent to the first day of November in such tax year, the full
amount of the tax imposed for the tax year shall be due and payable on
or before the last day on which the supplemental return with respect to
such medallion taxicab is required to be filed.
d. Notwithstanding any other provision of law to the contrary, the tax
imposed on medallion taxicabs pursuant to subparagraph (B) of paragraph
two of subdivision a of section 11-802 of this chapter shall, to the
extent not previously paid, be due and payable on or before December
first, nineteen hundred eighty-nine; provided, however, that if the tax
imposed on a medallion taxicab would, but for the provisions of this
subdivision, be due and payable subsequent to December first, nineteen
hundred eighty-nine, the due date of such tax shall be determined with-
out regard to this subdivision; and provided, further, that nothing in
this subdivision shall be deemed to extend the date for payment of any
tax imposed by paragraph two of subdivision a of section 11-802 of this
chapter.
e. Notwithstanding any provision of this chapter or of chapter five of
title nineteen of the code of the preceding municipality to the contra-
ry, the taxi and limousine commission may require by rule the payment of
the tax imposed on medallion taxicabs pursuant to this chapter as a
condition precedent of the licensing or license renewal of such medal-
lion taxicabs, and the taxi and limousine commission shall have the
authority to deny the license or the renewal thereof for any medallion
taxicab that fails to pay such tax.
§ 11-809 Stamps and other indicia of payment. a. The commissioner of
finance may, by regulation, provide that the payment of the tax imposed
by this chapter shall be evidenced by suitable stamps or other indicia
of payment in a form prescribed by the commissioner of finance and that
A. 10030 747
every owner shall affix such stamps or other indicia of payment in the
manner prescribed by regulation to each motor vehicle for which a tax
had been paid, or shall otherwise keep the indicia of payment with the
vehicle, readily available for inspection, in the manner prescribed by
regulation. The owner or driver of the vehicle, upon demand, shall
exhibit the indicia of payment to the commissioner of finance or the
commissioner's duly authorized agent or employee or to any police offi-
cer of this city or state. The commissioner of finance may, by regu-
lation, make similar provision for the use of stamps or other indicia
that no tax is payable with respect to particular motor vehicles.
b. An owner who sells a motor vehicle shall not transfer any stamp or
other indicia of payment to the purchaser except on a sale to a purchas-
er to whom the owner has properly given the certificate provided for in
section 11-808 of this chapter with regard to not obtaining a credit
toward any tax payable with respect to a replacement vehicle. The
commissioner of finance shall, by regulation, provide for the
destruction of the stamp or other indicia of payment or its return to
the commissioner of finance upon all sales except where transfer to the
purchaser is permitted and, where the motor vehicle sold has been
replaced, for the issuance of replacement stamps or indicia of payment.
§ 11-809.1 Collection of tax by commissioner of motor vehicles. a.
Notwithstanding any provision of this chapter to the contrary, the tax
imposed by this chapter on any commercial motor vehicle with a maximum
gross weight of ten thousand pounds or less and on any motor vehicle for
transportation of passengers, other than a medallion taxicab, shall be
collected by the commissioner of motor vehicles, provided that any such
motor vehicle is registered or required to be registered pursuant to any
provision of section four hundred one of the vehicle and traffic law.
The owner of each such motor vehicle shall pay the tax due thereon to
the commissioner of motor vehicles on or before the date upon which such
owner registers or renews the registration of such motor vehicle or is
required to register or renew the registration thereof pursuant to
section four hundred one of the vehicle and traffic law.
b. Notwithstanding any provision of section four hundred of the vehi-
cle and traffic law to the contrary, payment of the tax with respect to
a motor vehicle described in subdivision a of this section shall be a
condition precedent to the registration or renewal thereof of such motor
vehicle and to the issuance of any certificate of registration and
plates or removable date tag in accordance with the vehicle and traffic
law and the rules and regulations promulgated thereunder, and no such
certificate of registration, plates or tag shall be issued unless such
tax has been paid. If the registration period applicable to any such
vehicle is a period of not less than two years, as a result of the
application of the provisions of paragraph c of subdivision five of
section four hundred one of the vehicle and traffic law, the tax
required to be paid pursuant to this section shall be the annual tax
specified in section 11-802 of this chapter multiplied by the number of
years in the registration period. The commissioner of motor vehicles,
upon payment of the tax pursuant to this section or upon the application
of any person exempt therefrom, shall furnish to each taxpayer paying
the tax a receipt for such tax and to each other taxpayer or exempt
person a statement, document or other form prescribed by the commission-
er of motor vehicles, showing that such tax has been paid or is not due
with respect to such motor vehicle.
c. Notwithstanding the definition of the term "tax year" contained in
subdivision fourteen of section 11-801 of this chapter, for purposes of
A. 10030 748
the taxes payable to the commissioner of motor vehicles pursuant to this
section, "tax year" shall mean the twelve-month registration period
applicable to the subject motor vehicle under the vehicle and traffic
law and, in the case of a registration period of at least two years,
shall mean each succeeding twelve-month period falling within such
registration period.
d. Where the tax imposed by this chapter has been paid to the commis-
sioner of finance with respect to a motor vehicle for a tax year
described in subdivision fourteen of section 11-801 of this chapter, and
subsequent thereto but within such tax year the same taxpayer pays a tax
to the commissioner of the motor vehicles with respect to such motor
vehicle pursuant to this section, such taxpayer shall be entitled to a
refund or credit from the commissioner of finance for the portion of the
tax paid to the commissioner of finance which is attributable to the
period beginning on the first day of the first tax year, as the term
"tax year" is defined in subdivision c of this section, for which the
tax is paid to the commissioner of motor vehicles and ending on the
following May thirty-first, provided, however, that no such refund or
credit shall be allowed if the amount thereof is less than five dollars.
Any refund or credit to which a taxpayer is entitled pursuant to this
subdivision shall be promptly refunded or credited, without interest, by
the commissioner of finance, and the commissioner of finance may promul-
gate such rules as he or she deems necessary to carry out the provisions
of this subdivision. Any amount for which the taxpayer is entitled to a
refund or credit pursuant to this subdivision may be allowed as a credit
against the tax payable to the commissioner of motor vehicles pursuant
to this section to the extent and in the manner provided for in the
agreement authorized by subdivision k of this section.
e. Whenever any fee or portion of a fee paid for the registration of a
motor vehicle under the provisions of the vehicle and traffic law is
refunded pursuant to the provisions of subdivision one or one-a of
section four hundred twenty-eight thereof, the amount of any tax paid to
the commissioner of motor vehicles pursuant to this section upon such
registration shall also be refunded by the commissioner of motor vehi-
cles, provided that where a fee is refunded pursuant to subdivision
one-a of such section four hundred twenty-eight, the amount of tax to be
refunded shall be limited to the tax paid for a tax year commencing
subsequent to the end of the first twelve-month period of such registra-
tion.
f. Where the annual registration period applicable to a particular
class of motor vehicle begins and ends on the same dates for all motor
vehicles within such class, the tax payable to the commissioner of motor
vehicles pursuant to this section with respect to a motor vehicle within
such class which is registered or required to be registered after the
commencement of such annual registration period shall be determined for
such period as follows:
1. If such motor vehicle is registered or required to be registered
before the first day of the seventh month of such period, the tax shall
be the amount specified in subdivision a of section 11-802 of this chap-
ter.
2. If such motor vehicle is registered or required to be registered on
or after the first day of the seventh month of such period but before
the first day of the tenth month of such period, the tax shall be one-
half of the amount specified in subdivision a of section 11-802 of this
chapter.
A. 10030 749
3. If such motor vehicle is registered or required to be registered on
or after the first day of the tenth month of such period, the tax shall
be one-fourth of the amount specified in subdivision a of section 11-802
of this chapter.
g. The provisions of subdivision b of section 11-808 of this chapter
shall apply to this section with such modifications or adaptations as
are necessary to carry out the purposes of this section and to ensure
collection of the appropriate annual tax specified in subdivision a of
section 11-802 of this chapter, and with due regard to the respective
responsibilities of the commissioner of finance and the commissioner of
motor vehicles under this section and to the definitions of "tax year"
contained in subdivision c of this section and subdivision fourteen of
section 11-801 of this chapter. The agreement between the commissioner
of finance and the commissioner of motor vehicles authorized by subdivi-
sion k of this section may contain such provisions concerning the divi-
sion of responsibility for collection of the taxes imposed by this chap-
ter and the granting of refunds or credits as are consistent with this
section and subdivision b of section 11-808 of this chapter, and the
commissioner of finance and the commissioner of motor vehicles may also
adopt such rules as they deem necessary for such purposes.
h. Notwithstanding any provision of section 11-807 of this chapter to
the contrary, at the time a tax is required to be paid to the commis-
sioner of motor vehicles pursuant to this section, the person required
to pay such tax shall file a return with the commissioner of motor vehi-
cles in such form and containing such information as he or she may
prescribe. The taxpayer's application for registration or the renewal
thereof shall constitute the return required under this subdivision
unless the commissioner of motor vehicles shall otherwise provide by
rule. A return filed pursuant to this subdivision with respect to a
motor vehicle for a tax year or years shall be in lieu of any return
otherwise required to be filed with respect thereto pursuant to section
11-807 of this chapter.
i. In any case in which the tax imposed by this chapter is required to
be paid to the commissioner of motor vehicles but is not so paid, the
commissioner of finance shall collect such tax and all of the provisions
of this chapter relating to collection of taxes by the commissioner of
finance shall apply with respect thereto.
j. Notwithstanding any provision of section four hundred of the vehi-
cle and traffic law to the contrary, in those cases in which the commis-
sioner of finance is responsible for collecting the tax imposed by this
chapter, the commissioner of motor vehicles shall not issue a certif-
icate of registration, plates or removable date tag for any motor vehi-
cle subject to such tax with respect to which the commissioner of
finance has notified the commissioner of motor vehicles that such tax
has not been paid, unless the registrant submits proof, in a form
approved by the commissioner of motor vehicles, that such tax has been
paid, or is not due, with respect to such motor vehicle.
k. The commissioner of finance is hereby authorized and empowered to
enter into an agreement with the commissioner of motor vehicles to
govern the collection of the taxes imposed by this chapter which are
required to be paid to the commissioner of motor vehicles pursuant to
this section. Such agreement shall provide for the exclusive method of
collection, custody and remittal to the commissioner of finance of the
proceeds of any such tax; for the payment by the city of the reasonable
expenses incurred by the department of motor vehicles in connection with
the collection of any such tax; for the commissioner of finance, or a
A. 10030 750
duly designated representative, upon his or her request, not more
frequently than once in each calendar year at a time agreed upon by the
state comptroller, to audit the accuracy of the payments, distributions
and remittances to the city; and for such other matters as may be neces-
sary and proper to effectuate the purposes of such agreement. Such
agreement shall have the force and effect of a rule or regulation of the
commissioner of motor vehicles and shall be filed and published in
accordance with any statutory requirements relating thereto.
l. The commissioner of motor vehicles shall promptly notify the corpo-
ration counsel of the city of any litigation instituted against such
commissioner which challenges the constitutionality or validity of any
provision of this chapter, or of the enabling act pursuant to which it
was adopted, or which attempts to limit or question the application of
either such law, and such notification shall include copies of the
papers served upon such commissioner.
m. The commissioner of motor vehicles shall begin to collect taxes in
accordance with the provisions of this section at such time as is speci-
fied in the agreement between the commissioner of motor vehicles and the
commissioner of finance provided for in subdivision k of this section.
n. In addition to any other powers granted to the commissioner of
motor vehicles in this chapter or any other law, he or she is hereby
authorized and empowered: 1. to adopt and amend rules appropriate to
the carrying out of his or her responsibilities under this chapter; 2.
to request information concerning motor vehicles and persons subject to
the provisions of this chapter from the department of motor vehicles of
any other state, the treasury department of the United States or the
appropriate officials of any city or county of the state of New York;
and to afford such information to such department of motor vehicles,
treasury department or officials of such city or county, any provision
of this chapter to the contrary notwithstanding; 3. to delegate his or
her functions under this section to a deputy commissioner in the depart-
ment of motor vehicles or any employee of such department or to any
county clerk or other officer who acts as the agent of such commissioner
in the registration of motor vehicles; 4. to require all persons owning
motor vehicles with respect to which the tax imposed by this chapter is
payable to the commissioner of motor vehicles to keep such records as he
or she may prescribe and to furnish such information upon his or her
request; and 5. to extend, for cause shown, the time for filing any
return required to be filed with the commissioner of motor vehicles for
a period not exceeding sixty days.
o. To the extent that any provision of this section is in conflict
with any other provision of this chapter, the provisions of this section
shall be controlling, but in all other respects such other provisions of
this chapter shall remain fully applicable with respect to the imposi-
tion, administration and collection of the taxes imposed by this chap-
ter.
§ 11-809.2 Collection of tax by the taxi and limousine commission on
behalf of the commissioner of finance. a. Notwithstanding any provision
of this chapter to the contrary, the tax imposed by this chapter on any
designated licensed vehicle, as defined in this subdivision, shall be
collected by the taxi and limousine commission on behalf of the commis-
sioner of finance. Except as otherwise provided by subdivision m of this
section, the owner of each such designated licensed vehicle shall pay
the tax due thereon to the taxi and limousine commission on or before
the date upon which such owner licenses or renews the license of such
designated licensed vehicle or is required to license or renew the
A. 10030 751
license thereof pursuant to chapter five of title nineteen of the code
of the preceding municipality. For purposes of this section, the term
"designated licensed vehicle" shall mean a motor vehicle for the trans-
portation of passengers, other than a medallion taxicab, the tax on
which is not collected by the commissioner of motor vehicles pursuant to
section 11-809.1 of this chapter and which is licensed or required to be
licensed by the taxi and limousine commission pursuant to any provision
of chapter five of title nineteen of the code of the preceding munici-
pality.
b. Notwithstanding any provision of chapter five of title nineteen of
the code of the preceding municipality to the contrary, payment of the
tax with respect to a designated licensed vehicle shall be a condition
precedent to the licensing or license renewal of such designated
licensed vehicle with the taxi and limousine commission, and no such
license or renewal thereof shall be issued unless such tax has been
paid. Except as provided in subdivisions f and m of this section, if the
license period applicable to any such designated licensed vehicle is a
period of more than one year, the tax required to be paid pursuant to
this section shall be the annual tax specified in section 11-802 of this
chapter multiplied by the number of years in the license period. The
taxi and limousine commission, upon payment of the tax pursuant to this
section or upon the application of any person exempt therefrom, shall
furnish to each taxpayer paying the tax a receipt for such tax and to
each other taxpayer or exempt person a statement, document or other form
prescribed by the taxi and limousine commission, showing that such tax
has been paid or is not due with respect to such designated licensed
vehicle.
c. For purposes of this section, the term "tax period" shall mean the
license period applicable to the designated licensed vehicle under chap-
ter five of title nineteen of the code of the preceding municipality
and, in the case of a license period of other than one year, shall mean
the number of twelve-month periods and any period of less than twelve
months within such license period. The term "tax period" shall also
include any periods described in subparagraph (A) of paragraph one of
subdivision m of this section.
d. Except as provided in subdivision m of this section, where the tax
imposed by this chapter has been paid to the commissioner of finance
with respect to a motor vehicle for a tax year described in subdivision
fourteen of section 11-801 of this chapter, and subsequent thereto but
within such tax year the same taxpayer pays a tax to the taxi and limou-
sine commission with respect to such motor vehicle pursuant to this
section, such taxpayer shall be entitled to a refund or credit from the
commissioner of finance for the portion of the tax paid to the commis-
sioner of finance that is attributable to the period beginning on the
first day of the first tax period for which the tax is paid to the taxi
and limousine commission and ending on the following May thirty-first,
provided, however, that no such refund or credit shall be allowed if the
amount thereof is less than five dollars. Any refund or credit to which
a taxpayer is entitled pursuant to this subdivision shall be promptly
refunded or credited, without interest, by the commissioner of finance,
and the commissioner of finance may promulgate such rules as he or she
deems necessary to carry out the provisions of this subdivision.
e. If the license for the designated licensed vehicle is transferred,
surrendered or terminated for reasons other than revocation, and the
applicable license period under chapter five of title nineteen of the
code of the preceding municipality is for more than one year, and the
A. 10030 752
tax paid to the taxi and limousine commission was for a tax period of
more than twelve months, except as otherwise provided in the agreement
between the taxi and limousine commission and the commissioner of
finance authorized pursuant to subdivision k of this section, the
commissioner of finance shall refund the tax paid for any twelve-month
period commencing subsequent to the transfer, surrender or other termi-
nation of the license described in this subdivision.
f. Except as provided in subdivision m of this section, for designated
licensed vehicles whose license period is a two year period that begins
and ends on the same dates, the tax payable to the taxi and limousine
commission pursuant to this section with respect to a designated
licensed vehicle that is licensed or required to be licensed after the
commencement of such license period shall be determined as follows:
1. If such designated licensed vehicle is licensed or required to be
licensed before the first day of the seventh month of such period, the
tax shall be the amount determined pursuant to subdivision b of this
section.
2. If such designated licensed vehicle is licensed or required to be
licensed on or after the first day of the seventh month of such period
but before the first day of the thirteenth month of such period, the tax
shall be three-fourths of the amount determined pursuant to subdivision
b of this section.
3. If such designated licensed vehicle is licensed or required to be
licensed on or after the first day of the thirteenth month but before
the first day of the nineteenth month of such period, the tax shall be
one-half of the amount determined pursuant to subdivision b of this
section.
4. If such designated licensed vehicle is licensed or required to be
licensed on or after the first day of the nineteenth month of such peri-
od, the tax shall be one-fourth of the amount determined pursuant to
subdivision b of this section.
5. When the license period described in this section is for a period
of less than two years, the commissioner of finance shall have the
authority to provide by rule the amount to be payable under this subdi-
vision.
g. The provisions of subdivision b of section 11-808 of this chapter
shall apply to this section with such modifications or adaptations as
are necessary to carry out the purposes of this section and to ensure
collection of the appropriate annual tax specified in subdivision a of
section 11-802 of this chapter, and with due regard to the respective
responsibilities of the commissioner of finance and the taxi and limou-
sine commission under this section and to the definition of "tax year"
contained in subdivision fourteen of section 11-801 of this chapter and
to the definition of "tax period" contained in subdivision c of this
section. The agreement between the commissioner of finance and the taxi
and limousine commission authorized by subdivision k of this section may
contain such provisions concerning the division of responsibility for
collection of the taxes imposed by this chapter and the granting of
refunds or credits as are consistent with this section and subdivision b
of section 11-808 of this chapter, and the commissioner of finance and
the taxi and limousine commission may also adopt such rules as they deem
necessary for such purposes.
h. Notwithstanding any provision of section 11-807 of this chapter to
the contrary, at the time a tax is required to be paid to the taxi and
limousine commission pursuant to this section, the person required to
pay such tax shall file a return with the taxi and limousine commission
A. 10030 753
in such form and containing such information as the taxi and limousine
commission may prescribe. The taxpayer's application for a license or
the renewal thereof shall constitute the return required under this
subdivision unless the taxi and limousine commission shall otherwise
provide by rule. A return filed pursuant to this subdivision with
respect to a designated licensed vehicle for a tax period or periods
shall be in lieu of any return otherwise required to be filed with
respect thereto pursuant to section 11-807 of this chapter. Unless the
taxi and limousine commission otherwise requires, the filing of a return
shall not be required for the tax periods described in subparagraph (A)
of paragraph one of subdivision m of this section.
i. In any case in which the tax imposed by this chapter is required to
be paid to the taxi and limousine commission but is not so paid, the
commissioner of finance shall collect such tax and all of the provisions
of this chapter relating to collection of taxes by the commissioner of
finance shall apply with respect thereto.
j. Notwithstanding any provision of chapter five of title nineteen of
the code of the preceding municipality to the contrary, in those cases
in which the commissioner of finance is responsible for collecting the
tax imposed by this chapter, the taxi and limousine commission shall not
issue or renew a license for any designated licensed vehicle subject to
such tax with respect to which the commissioner of finance has notified
the taxi and limousine commission that such tax has not been paid,
unless the applicant for such license or renewal submits proof, in a
form approved by the taxi and limousine commission, that such tax has
been paid, or is not due, with respect to such designated licensed vehi-
cle.
k. The commissioner of finance is hereby authorized and empowered to
enter into an agreement with the taxi and limousine commission to govern
the collection of the taxes imposed by this chapter which are required
to be paid to the taxi and limousine commission pursuant to this
section. Such agreement may provide for the exclusive method of
collection, custody and remittal to the commissioner of finance of the
proceeds of any such tax; for the payment by the commissioner of finance
of reasonable expenses incurred by the taxi and limousine commission in
connection with the collection of any such tax; for the commissioner of
finance, or a duly designated representative, upon his or her request,
not more frequently than once in each calendar year at a time agreed
upon by the city comptroller, to audit the accuracy of the payments,
distributions and remittances to the commissioner of finance; and for
such other matters as may be necessary and proper to effectuate the
purposes of such agreement.
l. The taxi and limousine commission shall promptly notify the corpo-
ration counsel of the city and the commissioner of finance of any liti-
gation instituted against such commission which challenges the constitu-
tionality or validity of any provision of this chapter, or which
attempts to limit or question the application of this chapter, and such
notification shall include copies of the papers served upon such commis-
sion.
m. Except as otherwise provided in the agreement between the taxi and
limousine commission and the commissioner of finance authorized by
subdivision k of this section, or with respect to the periods described
in paragraph two of this subdivision, the taxi and limousine commission
shall begin to collect taxes in accordance with the provisions of this
section on the first day of April in the year two thousand twelve as
follows:
A. 10030 754
1. The tax due on a designated licensed vehicle, the license for which
expires on or after the first day of June in the year two thousand
twelve and before the first day of June in the year two thousand four-
teen, shall be determined as follows:
(A) For a designated licensed vehicle whose license expires on or
after the first day of June in the year two thousand twelve and before
the first day of June in the year two thousand fourteen, the amount of
tax for the tax period between the first day of June in the year two
thousand twelve and the date the license shall expire for such desig-
nated licensed vehicle pursuant to chapter five of title nineteen of the
code of the preceding municipality shall be the sum of (i) the annual
tax specified in subparagraph (C) of paragraph two of subdivision a of
section 11-802 of this chapter for any twelve-month period within such
tax period, and (ii) the amount determined under subparagraph (B) of
this paragraph for any period of less than twelve months within such tax
period. The amount of tax so determined shall be payable on or before
the first day of June in the year two thousand twelve. In the event the
amount of tax due and payable under this subparagraph shall not have
been paid within thirty days of the first day of June in the year two
thousand twelve, the taxi and limousine commission shall suspend the
license for such designated licensed vehicle, and the license for any
such designated licensed vehicle which has expired shall not be renewed
until such time as such tax is paid.
(B) For purposes of subparagraph (A) of this paragraph, the amount of
tax for a period of less than twelve months shall be determined as
follows: (i) if such period is nine months or more, the amount for such
period shall be the full amount of annual tax provided in subparagraph
(C) of paragraph two of subdivision a of section 11-802 of this chapter;
(ii) if such period is more than six months but less than nine months,
the amount for such period shall be three-fourths of the amount of annu-
al tax provided in subparagraph (C) of paragraph two of subdivision a of
section 11-802 of this chapter; (iii) if such period is more than three
months but less than six months, the amount for such period shall be
one-half of the amount of annual tax provided in subparagraph (C) of
paragraph two of subdivision a of section 11-802 of this chapter; and
(iv) if such period is less than three months, the amount for such peri-
od shall be one-fourth of the amount of annual tax provided in subpara-
graph (C) of paragraph two of subdivision a of section 11-802 of this
chapter.
2. Upon the date for payment set forth in subparagraph (A) of para-
graph one of this subdivision, the taxi and limousine commission shall
require the taxpayer to provide a proof of payment of the tax to the
commissioner of finance for the period beginning on the first day of
June in the year two thousand eleven and ending on the thirty-first day
of May in the year two thousand twelve or any part of such period for
which the taxpayer was subject to the tax. In the event the taxpayer has
not paid such tax to the commissioner of finance: (i) the license for
any designated licensed vehicle described in subparagraph (A) of this
paragraph shall not be renewed until such time as such tax, together
with any applicable interest or penalties, has been paid to the commis-
sioner of finance and (ii) if such tax remains unpaid as of the end of
the thirty-day period set forth in subparagraph (A) of paragraph one of
this subdivision, the license for any designated licensed vehicle
described in subparagraph (A) of paragraph one of this subdivision shall
be suspended until such time as such tax, together with any applicable
interest or penalties, is paid to the commissioner of finance.
A. 10030 755
n. In addition to any other powers granted to the taxi and limousine
commission in this chapter or any other law, the taxi and limousine
commission is hereby authorized and empowered:
1. to adopt and amend rules appropriate to the carrying out of its
responsibilities under this chapter;
2. to request information concerning motor vehicles and persons
subject to the provisions of this chapter from the commissioner of motor
vehicles, the department of motor vehicles of any other state, the trea-
sury department of the United States or the appropriate officials of any
city or county of the state of New York; and to afford such information
to such department of motor vehicles, treasury department or officials
of such city or county, any provision of this chapter to the contrary
notwithstanding;
3. to delegate its functions under this section to any commissioner or
employee of such commission;
4. to require any person who is an owner, as defined in chapter five
of title nineteen of the code of the preceding municipality, of a desig-
nated licensed vehicle to keep such records as it prescribes and to
furnish such information upon its request; and
5. to extend, for cause shown, the time for filing any return required
to be filed with the taxi and limousine commission for a period not
exceeding sixty days.
o. To the extent that any provision of this section is in conflict
with any other provision of this chapter, the provisions of this section
shall be controlling, but in all other respects such other provisions of
this chapter shall remain fully applicable with respect to the imposi-
tion, administration and collection of the taxes imposed by this chap-
ter.
§ 11-810 Determination of tax. If a return required by this chapter is
not filed, or if a return when filed is incorrect or insufficient, the
commissioner of finance shall determine the amount of tax due from such
information as may be obtainable and, if necessary, may estimate the tax
on the basis of external indices such as motor vehicle registration with
the department of motor vehicles and/or any other factors. Notice of
such determination shall be given to the person liable for the payment
of the tax. Such determination shall finally and irrevocably fix the tax
unless the person against whom it is assessed, within ninety days after
the giving of notice of such determination or, if the commissioner of
finance has established a conciliation procedure pursuant to section
11-124 of this title and the taxpayer has requested a conciliation
conference in accordance therewith, within ninety days from the mailing
of a conciliation decision or the date of the commissioner's confirma-
tion of the discontinuance of the conciliation proceeding, both (1)
serves a petition upon the commissioner of finance and (2) files a peti-
tion with the tax appeals tribunal for a hearing, or unless the commis-
sioner of finance of his or her own motion shall redetermine the same.
Such hearing and any appeal to the tax appeals tribunal sitting en banc
from the decision rendered in such hearing shall be conducted in the
manner and subject to the requirements prescribed by the tax appeals
tribunal pursuant to sections one hundred sixty-eight through one
hundred seventy-two of the charter of the preceding municipality as it
existed January first, nineteen hundred ninety-four. After such hearing
the tax appeals tribunal shall give notice of its decision to the person
against whom the tax is assessed and to the commissioner of finance. A
decision of the tax appeals tribunal sitting en banc shall be reviewable
for error, illegality or unconstitutionality or any other reason whatso-
A. 10030 756
ever by a proceeding under article seventy-eight of the civil practice
law and rules if application therefor is made to the supreme court by
the person against whom the tax was assessed within four months after
the giving of the notice of such tax appeals tribunal decision. A
proceeding under article seventy-eight of the civil practice law and
rules shall not be instituted by a taxpayer unless: (a) the amount of
any tax sought to be reviewed, with penalties and interest thereon, if
any, shall be first deposited with the commissioner of finance and there
shall be filed with the commissioner of finance an undertaking, issued
by a surety company authorized to transact business in this state and
approved by the superintendent of insurance of this state as to solvency
and responsibility, in such amount and with such sureties as a justice
of the supreme court shall approve, to the effect that if such proceed-
ing be dismissed or the tax confirmed, the taxpayer will pay all costs
and charges which may accrue in the prosecution of the proceeding, or
(b) at the option of the taxpayer such undertaking filed with the
commissioner of finance may be in a sum sufficient to cover the taxes,
penalties and interest thereon stated in such decision plus the costs
and charges which may accrue against it in the prosecution of the
proceeding, in which event the taxpayer shall not be required to deposit
such taxes, penalties and interest as a condition precedent to the
application.
§ 11-811 Refunds. a. In the manner provided in this section the
commissioner of finance shall refund or credit, without interest, any
tax, penalty or interest erroneously, illegally or unconstitutionally
collected or paid, if written application to the commissioner of finance
for such refund shall be made within one year from the payment thereof.
Whenever a refund or credit is made or denied, the commissioner of
finance shall state his or her reason therefor and give notice thereof
to the taxpayer in writing. The commissioner of finance may, in lieu of
any refund required to be made, allow credit therefor on payments due
from the applicant.
b. Any determination of the commissioner of finance denying a refund
or credit pursuant to subdivision a of this section shall be final and
irrevocable unless the applicant for such refund or credit, within nine-
ty days from the mailing or notice of such determination, or, if the
commissioner of finance has established a conciliation procedure pursu-
ant to section 11-124 of this title and the applicant has requested a
conciliation conference in accordance therewith, within ninety days from
the mailing of a conciliation decision or the date of the commissioner's
confirmation of the discontinuance of the conciliation proceeding, both
(1) serves a petition upon the commissioner of finance and (2) files a
petition with the tax appeals tribunal for a hearing. Such petition for
a refund or credit, made as herein provided, shall be deemed an applica-
tion for a revision of any tax, penalty or interest complained of. Such
hearing and any appeal to the tax appeals tribunal sitting en banc from
the decision rendered in such hearing shall be conducted in the manner
and subject to the requirements prescribed by the tax appeals tribunal
pursuant to sections one hundred sixty-eight through one hundred seven-
ty-two of the charter of the preceding municipality as it existed Janu-
ary first, nineteen hundred ninety-four. After such hearing, the tax
appeals tribunal shall give notice of its decision to the applicant and
to the commissioner of finance. The applicant shall be entitled to
institute a proceeding pursuant to article seventy-eight of the civil
practice law and rules to review a decision of the tax appeals tribunal
sitting en banc if application to the supreme court be made therefor
A. 10030 757
within four months after the giving of notice of such decision, and
provided, in the case of an application by a taxpayer, that a final
determination of tax due was not previously made. Such a proceeding
shall not be instituted by a taxpayer, unless an undertaking shall first
be filed with the commissioner of finance in such amount and with such
sureties as a justice of the supreme court shall approve, to the effect
that if such proceeding be dismissed or the tax confirmed, the taxpayer
will pay all costs and charges which may accrue in the prosecution of
the proceeding.
c. A person shall not be entitled to a revision, refund or credit
under this section of a tax, interest or penalty which had been deter-
mined to be due pursuant to the provisions of section 11-810 of this
chapter where such person has had a hearing or an opportunity for a
hearing, as provided in said section, or has failed to avail himself or
herself of the remedies therein provided. No refund or credit shall be
made of a tax, interest or penalty paid after a determination by the
commissioner of finance made pursuant to section 11-810 of this chapter
unless it be found that such determination was erroneous, illegal or
unconstitutional or otherwise improper, by the tax appeals tribunal
after a hearing or on the commissioner's own motion, or, if such tax
appeals tribunal affirms in whole or in part the determination of the
commissioner of finance, in a proceeding under article seventy-eight of
the civil practice law and rules, pursuant to the provisions of said
section, in which event refund or credit without interest shall be made
of the tax, interest or penalty found to have been overpaid.
§ 11-812 Remedies exclusive. The remedies provided by this chapter
shall be the exclusive remedies available to any person for the review
of tax liability imposed by this chapter; and no determination or
proposed determination of tax or determination on any application for
refund by the commissioner of finance, nor any decision by the tax
appeals tribunal or any of its administrative law judges, shall be
enjoined or reviewed by an action for declaratory judgment, an action
for money had and received or by any action or proceeding other than, in
the case of a decision by the tax appeals tribunal sitting en banc, a
proceeding under article seventy-eight of the civil practice law and
rules; provided, however, that a taxpayer may proceed by declaratory
judgment if the taxpayer institutes suit within thirty days after a
deficiency assessment is made and pays the amount of the deficiency
assessment to the commissioner of finance prior to the institution of
such suit and posts a bond for costs as provided in section 11-810 of
this chapter.
§ 11-813 Reserves. In cases where the taxpayer has applied for a
refund and has instituted a proceeding under article seventy-eight of
the civil practice law and rules to review a determination adverse to
the taxpayer on his or her application for refund, the comptroller shall
set up appropriate reserves to meet any decision adverse to the city.
§ 11-814 Proceedings to recover tax. a. Whenever any person shall
fail to pay any tax or penalty or interest imposed by this chapter as
herein provided, the corporation counsel shall, upon the request of the
commissioner of finance, bring or cause to be brought an action to
enforce payment of the same against the person liable for the same on
behalf of the city of Staten Island in any court of the state of New
York or of any other state or of the United States. If, however, the
commissioner of finance in his or her discretion believes that a taxpay-
er subject to the provisions of this chapter is about to cease business,
leave the state or remove or dissipate the assets out of which tax or
A. 10030 758
penalties might be satisfied and that any such tax or penalty will not
be paid when due, the commissioner may declare such tax or penalty to be
immediately due and payable and may issue a warrant immediately.
b. As an additional or alternate remedy, the commissioner of finance
may issue a warrant, directed to the city sheriff commanding the sheriff
to levy upon and sell the real and personal property of such person
which may be found within the city, for the payment of the amount there-
of, with any penalties and interest, and the cost of executing the
warrant, and to return such warrant to the commissioner of finance and
to pay to the commissioner the money collected by virtue thereof within
sixty days after the receipt of such warrant. The city sheriff shall,
within five days after the receipt of the warrant, file with the county
clerk a copy thereof, and thereupon such clerk shall enter in the judge-
ment docket the name of the person mentioned in the warrant and the
amount of the tax, penalties and interest for which the warrant is
issued and the date when such copy is filed. Thereupon the amount of
such warrant so docketed shall become a lien upon the title to and
interest in real and personal property of the person against whom the
warrant is issued. The city sheriff shall then proceed upon the warrant
in the same manner and with like effect as that provided by law in
respect to executions issued against property upon judgments of a court
of record, and for services in executing the warrant the sheriff shall
be entitled to the same fees which he or she may collect in the same
manner. In the discretion of the commissioner of finance a warrant of
like terms, force and effect may be issued and directed to any officer
or employee of the department of finance, and in the execution thereof
such officer or employee shall have all the powers conferred by law upon
sheriffs, but such officer or employee shall be entitled to no fee or
compensation in excess of the actual expenses paid in the performance of
such duty. If a warrant is returned not satisfied in full, the commis-
sioner of finance may from time to time issue new warrants and shall
also have the same remedies to enforce the amount due thereunder as if
the city had recovered judgment therefor and execution thereon had been
returned unsatisfied.
c. Whenever there is made a sale, transfer or assignment in bulk of
any part or the whole of a stock of merchandise or of fixtures, or
merchandise and of fixtures pertaining to the conducting of the business
of the seller, transferor or assignor, otherwise than in the ordinary
course of trade and in the regular prosecution of said business, the
purchaser, transferee or assignee shall at least ten days before taking
possession of such merchandise, fixtures, or merchandise and fixtures,
or paying therefor, notify the commissioner of finance by registered
mail of the proposed sale and of the price, terms and conditions thereof
whether or not the seller, transferor or assignor, has represented to,
or informed the purchaser, transferee or assignee that it owes any tax
pursuant to this chapter and whether or not the purchaser, transferee or
assignee has knowledge that such taxes are owing, and whether any such
taxes are in fact owing.
Whenever the purchaser, transferee or assignee shall fail to give
notice to the commissioner of finance as required by the opening para-
graph of this subdivision, or whenever the commissioner of finance shall
inform the purchaser, transferee or assignee that a possible claim for
such tax or taxes exists, any sums of money, property or choses in
action, or other consideration, which the purchaser, transferee or
assignee is required to transfer over to the seller, transferor or
assignor shall be subject to a first priority right and lien for any
A. 10030 759
such taxes theretofore or thereafter determined to be due from the sell-
er, transferor or assignor to the city, and the purchaser, transferee or
assignee is forbidden to transfer to the seller, transferor or assignor
any such sums of money, property or choses in action to the extent of
the amount of the city's claim. For failure to comply with the
provisions of this subdivision, the purchaser, transferee or assignee,
in addition to being subject to the liabilities and remedies imposed
under the provisions of former section forty-four of the personal prop-
erty law, shall be personally liable for the payment to the city of any
such taxes theretofore or thereafter determined to be due to the city
from the seller, transferor or assignor, and such liability may be
assessed and enforced in the same manner as the liability for tax under
this chapter.
d. The commissioner of finance, if he or she finds that the interests
of the city will not thereby be jeopardized, and upon such conditions as
the commissioner of finance may require, may release any property from
the lien of any warrant or vacate such warrant for unpaid taxes, addi-
tions to tax, penalties and interest filed pursuant to subdivision b of
this section, and such release or vacating of the warrant may be
recorded in the office of any recording officer in which such warrant
has been filed. The clerk shall thereupon cancel and discharge as of the
original date of docketing the vacated warrant.
§ 11-815 General powers of the commissioner of finance. In addition
to all other powers granted to the commissioner of finance in this chap-
ter, the commissioner is hereby authorized and empowered:
1. To make, adopt and amend rules and regulations appropriate to the
carrying out of this chapter and the purposes thereof;
2. To extend, for cause shown, the time for filing any kind of return
for a period not exceeding sixty days; and to compromise disputed claims
in connection with the taxes hereby imposed;
3. To request information concerning motor vehicles and persons
subject to the provisions of this chapter from the department of motor
vehicles and from the department of taxation and finance of the state of
New York or any successor to their duties, or the treasury department of
the United States relative to any person; and to afford information to
such department of motor vehicles, department of taxation and finance or
any successor to their duties, or to such treasury department relative
to any person, any other provision of this chapter to the contrary
notwithstanding;
4. To delegate the commissioner's functions hereunder to a deputy
commissioner of finance or any employee or employees of the department
of finance;
5. To assess, reassess, determine, revise and readjust the taxes
imposed under this chapter;
6. To provide methods for identifying motor vehicles not subject to or
exempt from the tax imposed under this chapter;
7. To provide that a certificate of registration need not be filed
with respect to any or all types of motor vehicles, or to provide that
such certificate of registration with respect to any or all types of
motor vehicles shall be contained on or combined with any return or
supplemental return required to be filed under this chapter.
§ 11-816 Administration of oaths and compelling testimony. a. The
commissioner of finance, the commissioner's employees duly designated
and authorized by the commissioner, the tax appeals tribunal and any of
its duly designated and authorized employees shall have power to admin-
ister oaths and take affidavits in relation to any matter or proceeding
A. 10030 760
in the exercise of their powers and duties under this chapter. The
commissioner of finance and the tax appeals tribunal shall have power to
subpoena and require the attendance of witnesses and the production of
books, papers and documents to secure information pertinent to the
performance of the duties of the commissioner or of the tax appeals
tribunal hereunder and of the enforcement of this chapter and to examine
them in relation thereto, and to issue commissions for the examination
of witnesses who are out of the state or unable to attend before the
commissioner or the tax appeals tribunal or excused from attendance.
b. A justice of the supreme court either in court or at chambers shall
have power summarily to enforce by proper proceedings the attendance and
testimony of witnesses and the production and examination of books,
papers and documents called for by the subpoena of the commissioner of
finance or the tax appeals tribunal under this chapter.
c. Cross-reference; criminal penalties. For failure to obey subpoenas
or for testifying falsely, see section 11-4007 of the code of the
preceding municipality; for supplying false or fraudulent information,
see section 11-4009 of the code of the preceding municipality.
d. The officers who serve the summons or subpoena of the commissioner
of finance or the tax appeals tribunal hereunder and witnesses attending
in response thereto shall be entitled to the same fees as are allowed to
officers and witnesses in civil cases in courts of record, except as
herein otherwise provided. Such officers shall be the city sheriff, and
the sheriff's duly appointed deputies or any officers or employees of
the department of finance or the tax appeals tribunal, designated to
serve such process.
§ 11-817 Interest and penalties. (a) Interest on underpayments. If
any amount of tax is not paid on or before the last date prescribed for
payment, without regard to any extension of time granted for payment,
interest on such amount at the rate set by the commissioner of finance
pursuant to subdivision (g) of this section, or, if no rate is set, at
the rate of seven and one-half percent per annum, shall be paid for the
period from such last date to the date of payment. In computing the
amount of interest to be paid, such interest shall be compounded daily.
Interest under this subdivision shall not be paid if the amount thereof
is less than one dollar.
(b) (1) Failure to file return. (A) In case of failure to file a
return under this chapter on or before the prescribed date, determined
with regard to any extension of time for filing, unless it is shown that
such failure is due to reasonable cause and not due to willful neglect,
there shall be added to the amount required to be shown as tax on such
return five percent of the amount of such tax if the failure is for not
more than one month, with an additional five percent for each additional
month or fraction thereof during which such failure continues, not
exceeding twenty-five percent in the aggregate.
(B) In the case of a failure to file a return of tax within sixty days
of the date prescribed for filing of such return, determined with regard
to any extension of time for filing, unless it is shown that such fail-
ure is due to reasonable cause and not due to willful neglect, the addi-
tion to tax under subparagraph (A) of this paragraph shall not be less
than the lesser of one hundred dollars or one hundred percent of the
amount required to be shown as tax on such return.
(C) For purposes of this paragraph, the amount of tax required to be
shown on the return shall be reduced by the amount of any part of the
tax which is paid on or before the date prescribed for payment of the
A. 10030 761
tax and by the amount of any credit against the tax which may be claimed
upon the return.
(2) Failure to pay tax shown on return. In case of failure to pay the
amount shown as tax on a return required to be filed under this chapter
on or before the prescribed date, determined with regard to any exten-
sion of time for payment, unless it is shown that such failure is due to
reasonable cause and not due to willful neglect, there shall be added to
the amount shown as tax on such return one-half of one percent of the
amount of such tax if the failure is not for more than one month, with
an additional one-half of one percent for each additional month or frac-
tion thereof during which such failure continues, not exceeding twenty-
five percent in the aggregate. For the purpose of computing the addition
for any month the amount of tax shown on the return shall be reduced by
the amount of any part of the tax which is paid on or before the begin-
ning of such month and by the amount of any credit against the tax which
may be claimed upon the return. If the amount of tax required to be
shown on a return is less than the amount shown as tax on such return,
this paragraph shall be applied by substituting such lower amount.
(3) Failure to pay tax required to be shown on return. In case of
failure to pay any amount in respect of any tax required to be shown on
a return required to be filed under this chapter which is not so shown,
including a determination made pursuant to section 11-810 of this chap-
ter, within ten days of the date of a notice and demand therefor, unless
it is shown that such failure is due to reasonable cause and not due to
willful neglect, there shall be added to the amount of tax stated in
such notice and demand one-half of one percent of such tax if the fail-
ure is not for more than one month, with an additional one-half of one
percent for each additional month or fraction thereof during which such
failure continues, not exceeding twenty-five percent in the aggregate.
For the purpose of computing the addition for any month, the amount of
tax stated in the notice and demand shall be reduced by the amount of
any part of the tax which is paid before the beginning of such month.
(4) Limitations on additions.
(A) With respect to any return, the amount of the addition under para-
graph one of this subdivision shall be reduced by the amount of the
addition under paragraph two of this subdivision for any month to which
an addition applies under both such paragraphs one and two. In any case
described in subparagraph (B) of paragraph one of this subdivision, the
amount of the addition under such paragraph one shall not be reduced
below the amount provided in such subparagraph.
(B) With respect to any return, the maximum amount of the addition
permitted under paragraph three of this subdivision shall be reduced by
the amount of the addition under paragraph one of this subdivision,
determined without regard to subparagraph (B) of such paragraph one,
which is attributable to the tax for which the notice and demand is made
and which is not paid within ten days of such notice and demand.
(c) Underpayment due to negligence. (1) If any part of an underpayment
of tax is due to negligence or intentional disregard of this chapter or
any rules or regulations hereunder, but without intent to defraud, there
shall be added to the tax a penalty equal to five percent of the under-
payment.
(2) There shall be added to the tax, in addition to the amount deter-
mined under paragraph one of this subdivision, an amount equal to fifty
percent of the interest payable under subdivision (a) of this section
with respect to the portion of the underpayment described in such para-
graph one which is attributable to the negligence or intentional disre-
A. 10030 762
gard referred to in such paragraph one, for the period beginning on the
last date prescribed by law for payment of such underpayment, determined
without regard to any extension, and ending on the date of the assess-
ment of the tax, or, if earlier, the date of the payment of the tax.
(d) Underpayment due to fraud. (1) If any part of an underpayment of
tax is due to fraud, there shall be added to the tax a penalty equal to
fifty percent of the underpayment.
(2) There shall be added to the tax, in addition to the penalty deter-
mined under paragraph one of this subdivision, an amount equal to fifty
percent of the interest payable under subdivision (a) of this section
with respect to the portion of the underpayment described in such para-
graph one which is attributable to fraud, for the period beginning on
the last day prescribed by law for payment of such underpayment, deter-
mined without regard to any extension, and ending on the date of the
assessment of the tax, or, if earlier, the date of the payment of the
tax.
(3) The penalty under this subdivision shall be in lieu of any other
addition to tax imposed by subdivision (b) or (c) of this section.
(e) Additional penalty. Any person who, with fraudulent intent, shall
fail to pay any tax imposed by this chapter, or to make, render, sign or
certify any return, or to supply any information within the time
required by or under this chapter, shall be liable for a penalty of not
more than one thousand dollars, in addition to any other amounts
required under this chapter to be imposed, assessed and collected by the
commissioner of finance. The commissioner of finance shall have the
power, in his or her discretion, to waive, reduce or compromise any
penalty under this subdivision.
(f) The interest and penalties imposed by this section shall be paid
and disposed of in the same manner as other revenues from this subchap-
ter. Unpaid interest and penalties may be enforced in the same manner as
the tax imposed by this chapter.
(g) (1) Authority to set interest rates. The commissioner of finance
shall set the rate of interest to be paid pursuant to subdivision (a) of
this section, but if no such rate of interest is set, such rate shall be
deemed to be set at seven and one-half percent per annum. Such rate
shall be the rate prescribed in paragraph two of this subdivision but
shall not be less than seven and one-half percent per annum. Any such
rate set by the commissioner of finance shall apply to taxes, or any
portion thereof, which remain or become due on or after the date on
which such rate becomes effective and shall apply only with respect to
interest computed or computable for periods or portions of periods
occurring in the period in which such rate is in effect.
(2) General rule. The rate of interest set under this subdivision
shall be the sum of (i) the federal short-term rate as provided under
paragraph three of this subdivision, plus (ii) seven percentage points.
(3) Federal short-term rate. For purposes of this subdivision:
(A) The federal short-term rate for any month shall be the federal
short-term rate determined by the United States secretary of the treas-
ury during such month in accordance with subsection (d) of section
twelve hundred seventy-four of the internal revenue code for use in
connection with section six thousand six hundred twenty-one of the
internal revenue code. Any such rate shall be rounded to the nearest
full percent, or, if a multiple of one-half of one percent, such rate
shall be increased to the next highest full percent.
(B) Period during which rate applies.
A. 10030 763
(i) In general. Except as provided in clause (ii) of this subpara-
graph, the federal short-term rate for the first month in each calendar
quarter shall apply during the first calendar quarter beginning after
such month.
(ii) Special rule for the month of September, nineteen hundred eight-
y-nine. The federal short-term rate for the month of April, nineteen
hundred eighty-nine shall apply with respect to setting the rate of
interest for the month of September, nineteen hundred eighty-nine.
(4) Publication of interest rate. The commissioner of finance shall
cause to be published in the City Record, and give other appropriate
general notice of, the interest rate to be set under this subdivision no
later than twenty days preceding the first day of the calendar quarter
during which such interest rate applies. The setting and publication of
such interest rate shall not be included within paragraph (a) of subdi-
vision five of section one thousand forty-one of the city charter of the
preceding municipality as it existed January first, nineteen hundred
ninety-four relating to the definition of a rule.
(h) Miscellaneous. (1) The certificate of the commissioner of finance
to the effect that a tax has not been paid, that a motor vehicle has not
been registered, that a return has not been filed, or that information
has not been supplied pursuant to the provisions of this chapter, shall
be presumptive evidence thereof.
(2) Cross-reference: For criminal penalties, see chapter forty of this
title.
§ 11-818 Information and records to be secret. a. Except in accord-
ance with proper judicial order, or as otherwise provided by law, it
shall be unlawful for the commissioner of finance, the tax appeals
tribunal, any other agency, officer or employee of the city, the commis-
sioner of motor vehicles, any officer or employee of the department of
motor vehicles, any agent of the commissioner of motor vehicles, or any
other person who, pursuant to this section, is permitted to inspect any
registration or return filed pursuant to this chapter, or to whom a
copy, an abstract or portion of any registration or return filed pursu-
ant to this chapter is furnished, or to whom any information contained
in any registration or return filed pursuant to this chapter is
furnished, to divulge or make known in any manner any information relat-
ing to or contained in any registration or any kind of return filed
pursuant to this chapter. The officers charged with the custody of such
registration and returns pertaining to the tax assessed pursuant to this
chapter shall not be required to produce any of them or evidence of
anything contained in them in any action or proceeding in any court,
except on behalf of the city, the commissioner of finance, the state or
the commissioner of motor vehicles, in an action or proceeding under the
provisions of this chapter, or on behalf of any party to any action or
proceeding under the provisions of this chapter when the registration,
return or facts shown therein are directly involved in such action or
proceeding, in either of which events, the court may require the
production of, and may admit in evidence, so much of said registration,
return, or of the facts shown therein, as are pertinent to the action or
proceeding and no more. The commissioner of finance may, nevertheless,
publish a copy or a summary of any determination or decision rendered
after a formal hearing held pursuant to section 11-810 or 11-811 of this
chapter. Nothing herein shall be construed to prohibit the delivery to a
person or such person's duly authorized representative of a certified
copy of any registration or return filed by such person; nor to prohibit
the delivery of any original return, with any notation that the commis-
A. 10030 764
sioner of finance or the commissioner of motor vehicles may cause to be
made thereon, to the person filing the return, whether such person files
the return on his or her own behalf or on behalf of another, or to the
person on whose behalf the return is filed; nor to prohibit the commis-
sioner of finance from providing by rule for the display or production
of any original return, as an indicium of payment of the tax imposed by
this chapter; nor to prohibit the publication of statistics so classi-
fied as to prevent the identification of particular registrations and
returns and the items thereof; nor to prohibit the delivery of a certi-
fied copy of any registration or return to the United States of America
or any department thereof, the state of New York or any department ther-
eof, the city of New York or any department thereof provided it is
requested for official business, nor to prohibit the inspection by the
corporation counsel or other legal representatives of the city, the
attorney general of the state of New York or other legal representatives
of the department of motor vehicles, or by the district attorney of any
county within the city of the registration or return of any person who
shall bring action to set aside or review any tax assessed pursuant to
this section, or against whom an action or proceeding under this chapter
is instituted. Returns, or reproductions thereof, pertaining to any
motor vehicle registered pursuant to this section shall be preserved for
three years and thereafter until the commissioner of finance or the
commissioner of motor vehicles permits them to be destroyed.
b. (1) Any officer or employee of the city or the state of New York
who willfully violates the provisions of subdivision a of this section
shall be dismissed from office and be incapable of holding any public
office in this city or the state of New York for a period of five years
thereafter.
(2) Cross-reference: For criminal penalties, see chapter forty of this
title.
c. This section shall be deemed a state statute for purposes of para-
graph (a) of subdivision two of section eighty-seven of the public offi-
cers law.
d. Notwithstanding anything in subdivision a of this section to the
contrary, if a taxpayer has petitioned the tax appeals tribunal for
administrative review as provided in section one hundred seventy of the
charter of the preceding municipality as it existed January first, nine-
teen hundred ninety-four, the commissioner of finance shall be author-
ized to present to the tribunal any report or return of such taxpayer,
or any information contained therein or relating thereto, which may be
material or relevant to the proceeding before the tribunal. The tax
appeals tribunal shall be authorized to publish a copy or a summary of
any decision rendered pursuant to section one hundred seventy-one of the
charter of the preceding municipality as it existed January first, nine-
teen hundred ninety-four.
§ 11-819 Notices and limitations of time. a. Any notice authorized or
required under the provisions of this chapter may be given to the person
for whom it is intended by mailing it in a postpaid envelope addressed
to such person at the address given in the last registration of a motor
vehicle filed by such person pursuant to the provisions of this chapter,
or in any application made by such person, or if no such registration
has been filed or application made, then to such address as may be
obtainable. The mailing of a notice as in this subdivision provided for
shall be presumptive evidence of the receipt of the same by the person
to whom addressed. Any period of time which is determined according to
the provisions of this chapter by the giving of notice shall commence to
A. 10030 765
run from the date of mailing of such notice as in this subdivision
provided.
b. The provisions of the civil practice law and rules or any other law
relative to limitations of time for the enforcement of a civil remedy
shall not apply to any proceeding or action taken by the city to levy,
appraise, assess, determine or enforce the collection of any tax or
penalty provided by this chapter. However, except in the case of a
wilfully false or fraudulent registration or return with intent to evade
the tax, no assessment of additional tax shall be made after the expira-
tion of more than three years from the date of such return; provided,
however, that where no registration or no return has been made as
provided by law, the tax may be assessed at any time.
c. Where before the expiration of the period prescribed in this
section for the assessment of an additional tax, a person has consented
in writing that such period be extended, the amount of such additional
tax due may be determined at any time within such extended period. The
period so extended may be further extended by subsequent consents in
writing made before the expiration of the extended period.
d. If any return, claim, statement, notice, application, or other
document required to be filed, or any payment required to be made, with-
in a prescribed period or on or before a prescribed date under authority
of any provision of this chapter is, after such period or such date,
delivered by United States mail to the commissioner of finance, commis-
sioner of motor vehicles, the tax appeals tribunal, bureau, office,
officer or person with which or with whom such document is required to
be filed, or to which or to whom such payment is required to be made,
the date of the United States postmark stamped on the envelope shall be
deemed to be the date of delivery. This subdivision shall apply only if
the postmark date falls within the prescribed period or on or before the
prescribed date for the filing of such document, or for making the
payment, including any extension granted for such filing or payment, and
only if such document or payment was deposited in the mail, postage
prepaid, properly addressed to the commissioner of finance, commissioner
of motor vehicles, the tax appeals tribunal, bureau, office, officer or
person with which or with whom the document is required to be filed or
to which or to whom such payment is required to be made. If any document
is sent by United States registered mail, such registration shall be
prima facie evidence that such document was delivered to the commission-
er of finance, commissioner of motor vehicles, the tax appeals tribunal,
bureau, office, officer or person to which or to whom addressed, and the
date of registration shall be deemed the postmark date. The commissioner
of finance or, where relevant, the tax appeals tribunal is authorized to
provide by regulation the extent to which the provisions of this subdi-
vision with respect to prima facie evidence of delivery and the postmark
date shall apply to certified mail. Except as provided in subdivision f
of this section, this subdivision shall apply in the case of postmarks
not made by the United States postal service only if and to the extent
provided by rule of the commissioner of finance or, where relevant, the
tax appeals tribunal.
e. When the last day prescribed under authority of this chapter,
including any extension of time, for performing any act falls on a
Saturday, Sunday or legal holiday in the state of New York, the perform-
ance of such act shall be considered timely if it is performed on the
next succeeding day which is not a Saturday, Sunday or legal holiday.
f. (1) Any reference in subdivision d of this section to the United
States mail shall be treated as including a reference to any delivery
A. 10030 766
service designated by the secretary of the treasury of the United States
pursuant to section seventy-five hundred two of the internal revenue
code and any reference in subdivision d of this section to a United
States postmark shall be treated as including a reference to any date
recorded or marked in the manner described in section seventy-five
hundred two of the internal revenue code by a designated delivery
service. If the commissioner of finance finds that any delivery service
designated by such secretary is inadequate for the needs of the city,
the commissioner of finance may withdraw such designation for purposes
of this title. The commissioner of finance may also designate additional
delivery services meeting the criteria of section seventy-five hundred
two of the internal revenue code for purposes of this title, or may
withdraw any such designation if the commissioner of finance finds that
a delivery service so designated is inadequate for the needs of the
city. Any reference in subdivision d of this section to the United
States mail shall be treated as including a reference to any delivery
service designated by the commissioner of finance and any reference in
subdivision d of this section to a United States postmark shall be
treated as including a reference to any date recorded or marked in the
manner described in section seventy-five hundred two of the internal
revenue code by a delivery service designated by the commissioner of
finance. Notwithstanding the provisions of this paragraph, any with-
drawal of designation or additional designation by the commissioner of
finance shall not be effective for purposes of service upon the tax
appeals tribunal, unless and until such withdrawal of designation or
additional designation is ratified by the president of the tax appeals
tribunal.
(2) Any equivalent of registered or certified mail designated by the
United States secretary of the treasury, or as may be designated by the
commissioner of finance pursuant to the same criteria used by such
secretary for such designations pursuant to section seventy-five hundred
two of the internal revenue code, shall be included within the meaning
of registered or certified mail as used in subdivision d of this
section. If the commissioner of finance finds that any equivalent of
registered or certified mail designated by such secretary or the commis-
sioner of finance is inadequate for the needs of the city, the commis-
sioner of finance may withdraw such designation for purposes of this
title. Notwithstanding the provisions of this paragraph, any withdrawal
of designation or additional designation by the commissioner of finance
shall not be effective for purposes of service upon the tax appeals
tribunal, unless and until such withdrawal of designation or additional
designation is ratified by the president of the tax appeals tribunal.
§ 11-820 Construction and enforcement. This chapter shall be
construed and enforced in conformity with chapter one thousand thirty-
two of the laws of nineteen hundred sixty, pursuant to which it is
enacted.
CHAPTER 9
TAX UPON FOREIGN AND ALIEN INSURERS
§ 11-901 Definitions. Wherever used in this chapter, the following
words and phrases shall mean and include:
"Alien insurer." Any insurer incorporated or organized under the laws
of any foreign nation, or of any province or territory not included
under the definition of a foreign insurer.
"Foreign insurer." Any insurer, except a mutual insurance company
taxed under the provisions of section nine thousand one hundred five of
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the insurance law, incorporated or organized under the laws of any
state, as herein defined, other than this state.
"Fire insurance corporation, association or individuals." Any insurer,
regardless of the name, designation or authority under which it purports
to act, which insures property of any kind or nature against loss or
damage by fire.
"Loss or damage by fire." Loss or damage by fire, lightning, smoke or
anything used to combat fire, regardless of whether such risks or the
premiums therefor are stated or charged separately and apart from any
other risk or premium.
"State." Any state of the United States and the District of Columbia.
"Commissioner of finance." The commissioner of finance of the city or
any other officer of the city designated to perform the same functions.
"Department of finance." The department of finance of the city or any
other agency or department designated to perform the same functions.
"Fire commissioner." The fire commissioner of the city.
"Comptroller." The comptroller of the city.
"Tax appeals tribunal." The tax appeals tribunal established by
section one hundred sixty-eight of the charter of the preceding munici-
pality as it existed January first, nineteen hundred ninety-four.
§ 11-902 General powers of the commissioner of finance. In addition
to all other powers granted to the commissioner of finance under this
chapter, the commissioner is hereby authorized and empowered:
1. To make, adopt and amend rules and regulations appropriate to the
carrying out of this chapter and the purposes thereof.
2. To compromise disputed claims in connection with taxes hereby
imposed.
3. To delegate his or her functions hereunder to any officer or
employee of the department of finance.
4. To prescribe reasonable methods, approved by the New York state
superintendent of insurance, for determining the amounts of premiums
subject to the tax.
5. To require any foreign or alien insurer subject to the tax to keep
detailed records of the premiums in a manner reasonably designed to show
the amounts thereof subject to the tax and to furnish such information
on request.
6. To assess, determine, revise and adjust the tax imposed under this
chapter.
7. To audit the reports of any insurer.
8. To allow an extension of time not in excess of thirty days for
filing the report and paying the tax required by this chapter, provided
the taxpayer requests such extension in writing prior to the date
prescribed for such filing and such payment by sections 11-904 and
11-903 of this chapter.
§ 11-903 Tax on premiums on policies of foreign and alien insurers.
There shall be paid to the department of finance for the use and benefit
of the fire department of the city, on or before the first day of March,
in each year by every foreign and alien fire insurance corporation,
association or individuals which insure property against loss or damage
by fire, the sum of two percent of all gross direct premiums less return
premiums which, during the year ending on the preceding thirty-first day
of December, shall have been received by any such insurer for any insur-
ance against loss or damage by fire in the city. Any such insurer which
in any year shall cease or terminate doing business in the city shall
pay the tax for such year within thirty days after such cessation or
termination.
A. 10030 768
§ 11-904 Report of premiums by insurers. Each insurer required to pay
a tax under this chapter shall, at the time such tax is paid or payable,
whichever is sooner, render to the commissioner of finance a verified
report setting forth such information as may be required by the commis-
sioner for the determination of the tax and the proper administration of
this chapter. The commissioner of finance shall prescribe the form and
furnish the necessary forms to enable such insurers to make such
reports. The commissioner or the commissioner's designated represen-
tative or the tax appeals tribunal or its designated representative
shall have power to examine any such insurer under oath and to require
the production by such insurer of all books and papers as the commis-
sioner or the tax appeals tribunal may deem necessary. All expenses of
collecting such tax shall be paid by the commissioner of finance from
the funds received under this chapter prior to the distribution thereof
as hereinafter authorized.
§ 11-905 Interest and penalties. (a) Interest on underpayments. If any
amount of tax is not paid on or before the last date prescribed for
payment, without regard to any extension of time granted for payment,
interest on such amount at the underpayment rate set by the commissioner
of finance pursuant to subdivision (g) of this section, or, if no rate
is set, at the rate of seven and one-half percent per annum, shall be
paid for the period from such last date to the date of payment. In
computing the amount of interest to be paid, such interest shall be
compounded daily. Interest under this subdivision shall not be paid if
the amount thereof is less than one dollar.
(b) (1) Failure to file return. (A) In case of failure to file a
return under this chapter on or before the prescribed date, determined
with regard to any extension of time for filing, unless it is shown that
such failure is due to reasonable cause and not due to willful neglect,
there shall be added to the amount required to be shown as tax on such
return five percent of the amount of such tax if the failure is for not
more than one month, with an additional five percent for each additional
month or fraction thereof during which such failure continues, not
exceeding twenty-five percent in the aggregate.
(B) In the case of a failure to file a return of tax within sixty days
of the date prescribed for filing of such return, determined with regard
to any extension of time for filing, unless it is shown that such fail-
ure is due to reasonable cause and not due to willful neglect, the addi-
tion to tax under subparagraph (A) of this paragraph shall not be less
than the lesser of one hundred dollars or one hundred percent of the
amount required to be shown as tax on such return.
(C) For purposes of this paragraph, the amount of tax required to be
shown on the return shall be reduced by the amount of any part of the
tax which is paid on or before the date prescribed for payment of the
tax and by the amount of any credit against the tax which may be claimed
upon the return.
(2) Failure to pay tax shown on return. In case of failure to pay the
amount shown as tax on a return required to be filed under this chapter
on or before the prescribed date, determined with regard to any exten-
sion of time for payment, unless it is shown that such failure is due to
reasonable cause and not due to willful neglect, there shall be added to
the amount shown as tax on such return one-half of one percent of the
amount of such tax if the failure is not for more than one month, with
an additional one-half of one percent for each additional month or frac-
tion thereof during which such failure continues, not exceeding twenty-
five percent in the aggregate. For the purpose of computing the addition
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for any month the amount of tax shown on the return shall be reduced by
the amount of any part of the tax which is paid on or before the begin-
ning of such month and by the amount of any credit against the tax which
may be claimed upon the return. If the amount of tax required to be
shown on a return is less than the amount shown as tax on such return,
this paragraph shall be applied by substituting such lower amount.
(3) Failure to pay tax required to be shown on return. In case of
failure to pay any amount in respect of any tax required to be shown on
a return required to be filed under this chapter which is not so shown,
including a determination made pursuant to section 11-906 of this chap-
ter, within ten days of the date of a notice and demand therefor, unless
it is shown that such failure is due to reasonable cause and not due to
willful neglect, there shall be added to the amount of tax stated in
such notice and demand one-half of one percent of such tax if the fail-
ure is not for more than one month, with an additional one-half of one
percent for each additional month or fraction thereof during which such
failure continues, not exceeding twenty-five percent in the aggregate.
For the purpose of computing the addition for any month, the amount of
tax stated in the notice and demand shall be reduced by the amount of
any part of the tax which is paid before the beginning of such month.
(4) Limitations on additions.
(A) With respect to any return, the amount of the addition under para-
graph one of this subdivision shall be reduced by the amount of the
addition under paragraph two of this subdivision for any month to which
an addition applies under both paragraphs one and two of this subdivi-
sion. In any case described in subparagraph (B) of paragraph one of
this subdivision, the amount of the addition under such paragraph one
shall not be reduced below the amount provided in such subparagraph.
(B) With respect to any return, the maximum amount of the addition
permitted under paragraph three of this subdivision shall be reduced by
the amount of the addition under paragraph one of this subdivision,
determined without regard to subparagraph (B) of such paragraph one
which is attributable to the tax for which the notice and demand is made
and which is not paid within ten days of such notice and demand.
(c) Underpayment due to negligence. (1) If any part of an underpayment
of tax is due to negligence or intentional disregard of this chapter or
any rules and regulations hereunder, but without intent to defraud,
there shall be added to the tax a penalty equal to five percent of the
underpayment.
(2) There shall be added to the tax, in addition to the amount deter-
mined under paragraph one of this subdivision an amount equal to fifty
percent of the interest payable under subdivision (a) of this section
with respect to the portion of the underpayment described in such para-
graph one which is attributable to the negligence or intentional disre-
gard referred to in such paragraph one, for the period beginning on the
last date prescribed by law for payment of such underpayment, determined
without regard to any extension, and ending on the date of the assess-
ment of the tax, or, if earlier, the date of the payment of the tax.
(d) Underpayment due to fraud. (1) If any part of an underpayment of
tax is due to fraud, there shall be added to the tax a penalty equal to
fifty percent of the underpayment.
(2) There shall be added to the tax, in addition to the penalty deter-
mined under paragraph one of this subdivision, an amount equal to fifty
percent of the interest payable under subdivision (a) of this section
with respect to the portion of the underpayment described in such para-
graph one which is attributable to fraud, for the period beginning on
A. 10030 770
the last day prescribed by law for payment of such underpayment, deter-
mined without regard to any extension, and ending on the date of the
assessment of the tax, or, if earlier, the date of the payment of the
tax.
(3) The penalty under this subdivision shall be in lieu of any other
addition to tax imposed by subdivision (b) or (c) of this section.
(e) Additional penalty. Any insurer who, with fraudulent intent, shall
fail to pay any tax imposed by this chapter, or to make, render, sign or
certify any return, or to supply any information within the time
required by or under this chapter, shall be liable for a penalty of not
more than one thousand dollars, in addition to any other amounts
required under this chapter to be imposed, assessed and collected by the
commissioner of finance. The commissioner of finance shall have the
power, in his or her discretion, to waive, reduce or compromise any
penalty under this subdivision.
(f) The interest and penalties imposed by this section shall be paid
and disposed of in the same manner as other revenues from this chapter.
Unpaid interest and penalties may be enforced in the same manner as the
tax imposed by this chapter.
(g) (1) Authority to set interest rates. The commissioner of finance
shall set the overpayment and underpayment rates of interest to be paid
pursuant to subdivision (a) of this section and subdivision (a) of
section 11-906 of this chapter, but if no such overpayment rate of
interest are set, such rate or rates shall be deemed to be set at six
percent per annum and such underpayment rate shall be deemed to be set
at seven and one-half percent per annum. Such rates shall be the over-
payment and underpayment rates prescribed in paragraph two of this
subdivision but the underpayment rate shall not be less than seven and
one-half percent per annum. Any such rates set by the commissioner of
finance shall apply to taxes, or any portion thereof, which remain or
become due or overpaid on or after the date on which such rates become
effective and shall apply only with respect to interest computed or
computable for periods or portions of periods occurring in the period in
which such rates are in effect.
(2) General rule. (A) Overpayment rate. The overpayment rate set under
this subdivision shall be the sum of (i) the federal short-term rate as
provided under paragraph three of this subdivision, plus (ii) two
percentage points.
(B) Underpayment rate. The underpayment rate set under this subdivi-
sion shall be the sum of (i) the federal short-term rate as provided
under paragraph three of this subdivision, plus (ii) seven percentage
points.
(3) Federal short-term rate. For purposes of this subdivision:
(A) The federal short-term rate for any month shall be the federal
short-term rate determined by the United States secretary of the treas-
ury during such month in accordance with subsection (d) of section
twelve hundred seventy-four of the internal revenue code for use in
connection with section six thousand six hundred twenty-one of the
internal revenue code. Any such rate shall be rounded to the nearest
full percent, or, if a multiple of one-half of one percent, such rate
shall be increased to the next highest full percent.
(B) Period during which rate applies.
(i) In general. Except as provided in clause (ii) of this subpara-
graph, the federal short-term rate for the first month in each calendar
quarter shall apply during the first calendar quarter beginning after
such month.
A. 10030 771
(ii) Special rule for the month of September, nineteen hundred eight-
y-nine. The federal short-term rate for the month of April, nineteen
hundred eighty-nine shall apply with respect to setting the rate of
interest for the month of September, nineteen hundred eighty-nine.
(4) Publication of interest rate. The commissioner of finance shall
cause to be published in the City Record, and give other appropriate
general notice of, the interest rate to be set under this subdivision no
later than twenty days preceding the first day of the calendar quarter
during which such interest rate applies. The setting and publication of
such interest rate shall not be included within paragraph (a) of subdi-
vision five of section one thousand forty-one of the city charter of the
preceding municipality as it existed January first, nineteen hundred
ninety-four relating to the definition of a rule.
§ 11-906 Assessment, refund, collection, review and reserves. (a) The
provisions of the civil practice law and rules or any other law relative
to limitations of time for the enforcement of a civil remedy shall not
apply to any proceeding or action by the commissioner of finance to
levy, assess, determine or enforce the collection of tax, interest or
penalty imposed by this chapter. However, except in the case of a
wilfully false or fraudulent report, no assessment of additional tax,
interest or penalty shall be made after the expiration of more than
three years from the date of the filing of a report, provided, however,
that where no report has been filed as provided by law the tax may be
assessed at any time. The commissioner of finance shall refund or cred-
it, with interest at the overpayment rate set by the commissioner of
finance pursuant to subdivision (g) of section 11-905 of this chapter
or, if no rate is set, at the rate of six percent per annum computed
from the date of overpayment to a date, to be determined by the commis-
sioner of finance, preceding the date of a refund check by not more than
thirty days, any tax, penalty or interest erroneously, illegally or
unconstitutionally collected or paid if application to the commissioner
of finance for such refund shall be made within six months from the
payment thereof. Notice of any determination of the commissioner of
finance with respect to an assessment of tax, interest or penalty or
with respect to a claim for refund or any other notice, demand or
request shall be given by mailing the same to the insurer to the address
of its city of Staten Island office last filed with the commissioner of
finance or, if there is no such office, to the address of its main
office last filed with the commissioner of finance or, in the absence of
any filed address, to such address as may be obtainable. The mailing of
any notice, demand or request by the commissioner of finance shall be
presumptive evidence of its receipt by the insurer and any period of
time to be determined with reference to the giving of such notice,
demand or request shall commence to run from the date of such mailing.
The determination of the commissioner of finance shall finally and irre-
vocably fix the amount of any tax, interest or penalty due or to be
refunded unless the taxpayer, within ninety days after the giving of
notice of such determination, or if the commissioner of finance has
established a conciliation procedure pursuant to section 11-124 of this
title and the taxpayer has requested a conciliation conference in
accordance therewith, within ninety days from the mailing of a concil-
iation decision or the date of the commissioner's confirmation of the
discontinuance of the conciliation proceeding, both (1) serves a peti-
tion upon the commissioner of finance and (2) files a petition with the
tax appeals tribunal for a hearing, or unless the commissioner of
finance of his or her own motion shall redetermine the same. Such hear-
A. 10030 772
ing and any appeal to the tax appeals tribunal sitting en banc from the
decision rendered in such hearing shall be conducted in the manner and
subject to the requirements prescribed by the tax appeals tribunal
pursuant to sections one hundred sixty-eight through one hundred seven-
ty-two of the charter of the preceding municipality as it existed Janu-
ary first, nineteen hundred ninety-four. After such hearing the tax
appeals tribunal shall give notice of its decision to the taxpayer and
to the commissioner of finance with reference to the amount of the tax,
interest or penalty assessed or to be refunded. The decision of the tax
appeals tribunal sitting en banc shall be reviewable for error, illegal-
ity or unconstitutionality or any other reason, by a proceeding under
article seventy-eight of the civil practice law and rules if such
proceeding is commenced by the person against whom the tax was assessed
within four months after the giving of the notice of such tax appeals
tribunal decision. Such proceeding shall not be commenced by the taxpay-
er unless: (1) the amount of any tax assessed and sought to be reviewed
with penalties and interest thereon, if any, shall be first deposited
with the commissioner of finance and there shall be filed with the
commissioner of finance an undertaking in such amount and with such
sureties as a justice of the supreme court shall approve, to the effect
that if such proceeding be dismissed or the decision confirmed, the
taxpayer will pay all costs and charges which may accrue against the
taxpayer in the prosecution of the proceeding, or (2) in the case of a
review of a decision assessing any taxes, penalties and interest, at the
option of the taxpayer, such undertaking may be in a sum sufficient to
cover all of the taxes, penalties and interest assessed by such decision
plus the costs and charges which may accrue against the taxpayer in the
prosecution of the proceeding, in which event the taxpayer shall not be
required to deposit such taxes, penalties and interest as a condition
precedent to the commencement of the proceeding. No determination or
proposed determination of tax, interest or penalty due or to be refunded
shall be reviewed or enjoined in any manner except as set forth herein.
(b) In cases where the taxpayer has applied for a refund and has
commenced a proceeding under article seventy-eight of the civil practice
law and rules to review a decision of the tax appeals tribunal adverse
to such taxpayer on its application for a refund, the commissioner of
finance shall set up appropriate reserves to meet any decision adverse
to the city.
(c) In computing the amount of interest to be paid under this section,
such interest shall be compounded daily.
§ 11-907 Place of business to be reported. Every insurer, on or
before the first day of March in each year, and as often in each year as
such insurer shall change its principal place of business or change or
terminate any office or place of business in the city, shall report in
writing, to the commissioner of finance, the location of its principal
place of business and any new principal place of business or of any new
office or place of business in the city or of the termination of any
such office or place of business. In the event of such change or termi-
nation, such report shall be made no later than fifteen days after such
change or termination. Any insurer who fails or neglects to make such
report within the time limited therefor shall be subject to a penalty of
one hundred dollars and, in addition thereto, fifty dollars for each
month or part thereof during which such report is not made. The total
of such penalties shall not exceed one thousand dollars.
§ 11-908 Suits for violations. The tax provided to be paid by this
chapter, and the pecuniary penalties and interest imposed therein, or
A. 10030 773
any or either of them, may be sued for and recovered, with costs of
suit, in any court of record, by the commissioner of finance.
§ 11-909 Distribution of tax on policies covering property in the city
of Staten Island. (a) The moneys received by the commissioner of finance
as a tax on policies covering property in the city shall be disbursed by
the commissioner of finance as follows:
1. Ten percent to the firemen's association of the state of New York,
for the endowment, benefit and maintenance of the volunteer firemen's
home at Hudson, but in no event to exceed the sum of thirty-five thou-
sand dollars annually.
2. The balance to the general fund of the city established pursuant to
section one hundred nine of the charter, except as provided in paragraph
three of this subdivision.
3. a. Volunteer firemen's benevolent fund; trustee. From the balance
specified in paragraph two of this subdivision, a sum, not to exceed one
hundred fifty thousand dollars in any one year, shall be paid into a
fund to be known as the volunteer firemen's benevolent fund, which shall
be administered as provided by the fire commissioner, as trustee of such
fund, for the benefit of indigent volunteer firefighters, their surviv-
ing spouses and orphans.
b. Persons entitled to benefits from fund. All funds received by the
fire commissioner as trustee under this paragraph shall be expended by
the fire commissioner for the relief of:
(i) all indigent volunteer firefighters who served as such for a peri-
od of five years in a duly organized volunteer fire company in the
former towns of New Lots, Flatlands, Gravesend, New Utrecht and Flatbush
in the county of Kings, or in the territory now included in the city of
Staten Island, or in the territory now included in the borough of
Queens, or in the territory now included in the borough of the Bronx,
and who were honorably discharged after such five years of service, or
who having been members of a duly organized volunteer fire company with-
in any such town or territory, which company was disbanded by reason of
the installation of a paid fire department, and were members of such
company for at least one year prior to its disbandment;
(ii) the surviving spouses and orphans of any such volunteer fire-
fighters.
c. Fund benefits of beneficiaries on rolls as of December thirty-
first, nineteen hundred fifty-one. During the lifetime of those relief
beneficiaries who appear as such as of December thirty-first, nineteen
hundred fifty-one upon the records of the trustees of the exempt fire-
men's benevolent fund of the county of Kings, or of the trustees of the
exempt firemen's benevolent fund of the borough of Queens, or of the
trustees of the exempt firemen's benevolent fund of the borough of
Staten Island, or of the trustees of the exempt firemen's benevolent
fund of the borough of the Bronx, it shall be the duty of the fire
commissioner, as such trustee, to pay to such beneficiaries from the
volunteer firemen's benevolent fund referred to in subparagraph a of
this paragraph, the same amounts as were being periodically paid to such
beneficiaries as of June thirtieth, nineteen hundred fifty-two.
d. Fund benefits of residents of firemen's home. It shall be the duty
of the fire commissioner, as such trustee, to pay from such fund
referred to in subparagraph a of this paragraph, the sum of ten dollars
monthly to each volunteer firefighter in residence at the volunteer
firemen's home at Hudson, who qualified for entrance into such home by
reason of service as a volunteer firefighter within the area now
included within the boundaries of the city. No other payments shall be
A. 10030 774
made from such fund to any such volunteer firefighter while in residence
at such home.
e. Eligibility of persons who applied for fund benefits after December
thirty-first, nineteen hundred fifty-one, and prior to the establishment
of fund. Upon the establishment of the volunteer firemen's benevolent
fund referred to in subparagraph a of this paragraph, the fire commis-
sioner or the fire commissioner's authorized subordinates shall investi-
gate and determine the need for benefits of all persons who, after
December thirty-first, nineteen hundred fifty-one and prior to the
establishment of such volunteer firemen's benevolent fund, applied for
benefits payable from any of the benevolent funds mentioned in subpara-
graph c of this paragraph, and who are receiving benefits therefrom at
the time of the establishment of such fund referred to in subparagraph a
of this paragraph. No such person shall be found to be in need of bene-
fits, nor shall any such person be paid any benefits from such last-men-
tioned fund unless the fire commissioner or the fire commissioner's
authorized subordinates shall determine that such person is indigent. In
the event that any such person is thus found to be in need of benefits,
the fire commissioner shall pay to such person from such last-mentioned
fund, the same periodic amounts as the trustees mentioned in subpara-
graph c of this paragraph were paying as of June thirtieth, nineteen
hundred fifty-two, to a person who had the same status and who was
receiving benefits from the borough or county fund which would be
currently liable for the payment of benefits to such person, but for the
provision of section 13-532 of the code of the preceding municipality.
It shall be the duty of the fire commissioner and the fire commission-
er's authorized subordinates to maintain and carry out continuously,
such investigation procedures as may be necessary to assure that bene-
fits will not be paid from such fund to any persons who are not in need
as herein specified.
f. Eligibility for benefits of persons applying therefor after estab-
lishment of fund. All persons applying after the establishment of the
volunteer firemen's benevolent fund for benefits payable therefrom shall
be investigated as to need by the fire commissioner or the fire commis-
sioner's authorized subordinates, and the eligibility of such persons
for benefits and the amount thereof to be awarded and paid to them shall
be determined by the fire commissioner or the fire commissioner's
authorized subordinates in accordance with the standards specified in
subparagraph e of this paragraph. Benefits shall be paid from such fund
to eligible persons in accordance with such determination and it shall
be the duty of the fire commissioner and the fire commissioner's subor-
dinates continuously to maintain and carry out as to such persons inves-
tigation procedures such as are described in subparagraph e of this
paragraph. The fire commissioner, as part of his or her investigation to
determine eligibility of persons for fund benefits, shall request from
the duly appointed representative of the volunteer firefighters in each
borough a report on such person's service and indigency. Such report
shall be solely for the information of the fire commissioner and shall
not be binding upon the fire commissioner in arriving at a determination
as to eligibility. In the event that such report is not submitted within
ten days from the date of request, the fire commissioner shall determine
eligibility on the basis of the facts developed in the fire commission-
er's own investigation.
g. Excess moneys. In the event that the benefits paid by the fire
commissioner, as trustee, during any period of one year beginning on the
first day of February shall not equal the sum of one hundred fifty thou-
A. 10030 775
sand dollars, the unexpended balance shall be paid into the general fund
of the city established pursuant to section one hundred nine of the
charter, except that the fire commissioner may retain in the volunteer
firemen's benevolent fund such amount as may be necessary to meet the
commitments of such fund until the revenue from the tax collected under
this chapter in the ensuing taxable year shall become available.
h. Depositories. The fire commissioner, as trustee, is hereby
empowered and directed to receive all moneys and assets belonging or
payable to such volunteer firemen's benevolent fund and shall deposit
all such moneys to the credit of such fund in banks and trust companies
to be selected by the fire commissioner.
i. Bond. The fire commissioner, as trustee of such fund, shall give a
bond with one or more sureties, in a sum sufficient for the faithful
performance of his or her duties, such bond to be approved as to amount
and adequacy, by the comptroller and filed in the comptroller's office.
j. Records. The officers and employees of the fire department who are
responsible for the maintenance of the books and records of the New York
fire department pension fund shall have charge of, and keep the accounts
of the fire commissioner as trustee of the volunteer firemen's benevo-
lent fund.
k. Reports. The fire commissioner, as trustee of such volunteer fire-
men's benevolent fund, shall submit to the mayor on or before the first
day of April of each year, a verified report in which shall be set forth
the account of the fire commissioner's proceedings as such trustee
during the twelve-month period ending on the thirty-first day of January
immediately preceding. Such report shall include a statement of all
receipts and disbursements on account of such benevolent fund, a list of
the names, residences and as nearly as possible, the ages of the benefi-
ciaries of such fund and the respective amounts paid to them during such
period.
1. Audit. The comptroller shall have the power to audit the books and
records of the fire commissioner as trustee of the volunteer firemen's
benevolent fund.
(b) The moneys received by the fire commissioner as trustee pursuant
to the provisions of paragraph three of subdivision (a) of this section
shall be expended by the fire commissioner only as provided in such
paragraph.
CHAPTER 10
OCCUPANCY TAX FOR LOW RENT HOUSING AND SLUM CLEARANCE
§ 11-1001 Legislative findings. It is hereby declared that: In
certain areas of the city of Staten Island there exist unsanitary or
substandard housing conditions owing to overcrowding and concentration
of population, improper planning, excessive land coverage, lack of prop-
er light, air and space, unsanitary design and arrangement, or lack of
proper sanitary facilities; there is not an adequate supply of decent,
safe and sanitary dwelling accommodations for persons of low income;
these conditions cause an increase and spread of disease and crime and
constitute a menace to the health, safety, morals, welfare and comfort
of the citizens of the state, and impair economic values; these condi-
tions cannot be remedied by the ordinary operation of private enter-
prise; the clearance, replanning and reconstruction of the areas in
which unsanitary or substandard housing conditions exist and the provid-
ing of decent, safe and sanitary dwelling accommodations in such areas
and elsewhere for persons of low income are public uses and purposes for
A. 10030 776
which public money may be spent and private property acquired; therefore
the necessity in the public interest to enact the provisions of this
chapter is hereby declared, as a matter of legislative determination.
§ 11-1002 Low rent housing and slum clearance; governmental functions.
It is hereby declared as a matter of legislative determination that the
clearing of areas in which the conditions described in section 11-1001
of this chapter exist and the furnishing of low rent housing for the
occupants thereof be hereafter a function of the government of the city
of Staten Island.
§ 11-1003 Housing authority; agent for city. It is hereby declared
that the city housing authority be and it hereby is appointed as the
agent for the city of Staten Island to carry out the functions described
in section 11-1002 of this chapter.
§ 11-1004 Definitions. When used in this chapter: a. The word "occu-
pation" means the use or possession for a consideration of any premises
under any lease, concession, permit, right of access, license to use, or
other agreement, for any gainful purpose.
b. The word "occupant" means any person who uses or possesses for a
consideration any premises under any lease, concession, permit, right of
access, license to use or other agreement for any gainful purpose.
c. The word "person" means an individual, co-partnership, society,
association, joint-stock company, corporation, estate, receiver, assig-
nee, trustee or any other person acting in a fiduciary capacity, whether
appointed by a court or otherwise, and any combination of individuals.
d. The word "premises" means any real property, or any part thereof,
any kind of space, or structure, except premises, as defined in this
subdivision, which are located in, upon, above or under any public
street, highway or public place, separately occupied in the city of
Staten Island by any person for his or her own use for gainful purpose
or by any concessionaire for such use for gainful purpose, whether by
ownership, lease, sublease, profit-sharing arrangement or otherwise.
e. The words "rental value" mean the amount of the consideration annu-
ally fixed or charged against any person for the occupation of any prem-
ises during the period of one year commencing on July sixteenth of the
year prior to the year in which the tax is due and terminating on July
fifteenth of the year in which the tax is due, or if computed on a basis
other than an annual basis, then the amount which would be equivalent to
an annual charge for the occupation of the premises.
f. The words "non-federal project" shall mean a project not aided or
financed in whole or in part by the federal government and where such
government does not reserve the right to approve or supervise the
construction or operation of the project.
g. The words "vending machine" mean a machine which vends or sells
tangible personal property; and shall also include but not be limited to
amusement devices, automatic sanitary facilities and all other machines
vending services.
§ 11-1005 Imposition of the tax. a. To provide additional funds for
the purpose of fulfilling any contract to make capital or periodic
subsidies to the city housing authority in aid of a low rent or slum
clearance project or for the purpose of paying an indebtedness incurred
for a low rent or slum clearance project, every occupant of premises for
a year or any part thereof in excess of one month and fifteen days shall
pay annually to the commissioner of finance on June twentieth of each
year until and including June twentieth, nineteen hundred eighty-one, a
tax for each separate premises occupied at the rates computed, with
A. 10030 777
reference to the rental value for separate premises in the city of
Staten Island, as specified in the following table:
======================================================================
When the rental And not The amount of
value is at least more than the tax shall be
________________________________________________________________________
$1.00................... $1,000.99 $2.00
1,001.00................... 2,000.99 4.00
2,001.00................... 3,000.99 6.00
3,001.00................... 4,000.99 8.00
4,001.00................... 5,000.99 10.00
5,001.00 and over........................... 12.00
========================================================================
b. Where the premises are occupied by vending machines which sell
tangible personal property the tax shall be computed as specified in the
following table:
========================================================================
When the total value of the
coins used in such vending The amount of
machines is the tax shall be
________________________________________________________________________
$.01................................... $ .20
.02 to .14 incl....................... .40
.15 to .24 incl....................... 1.00
.25 and over.......................... 2.00
========================================================================
c. Where the premises are occupied by vending machines other than
those which sell tangible personal property the tax shall be computed as
specified in the following table:
========================================================================
When the total value of the
coins used in such vending The amount of
machines is the tax shall be
________________________________________________________________________
$.01..................................... $.40
.02 and over............................ 2.00
========================================================================
§ 11-1006 Exemptions. No tax as imposed by section 11-1005 of this
chapter shall be due or payable in any event for the occupation of any
of the premises described in this section to the extent so occupied and
no return need be made therefor pursuant to the provisions of this chap-
ter if any of the following conditions be demonstrated to the satisfac-
tion of the commissioner of finance:
1. That the premises are occupied by:
(a) Peddlers.
(b) Bootblacks, excluding shoe shine machines or enterprises where
services other than the shining of shoes are rendered.
(c) Operators of pushcarts.
(d) Operators of kiosk or subway stands engaged solely and exclusively
in the sale of newspapers, magazines and periodicals, or any combination
thereof.
(e) Operators of stoop line stands licensed pursuant to chapter two of
title twenty of the code of the preceding municipality.
(f) Operators of newspaper stands licensed pursuant to chapter two of
title twenty of the code of the preceding municipality.
A. 10030 778
2. That the premises are occupied for a period of less than one month
and fifteen days during the period of one year preceding July fifteenth
of the year in which the tax is due.
3. That the premises are occupied by a co-operative corporation organ-
ized under the provisions of the cooperative corporations law of the
state of New York, or an agricultural co-operative organized under the
authority of the federal government.
4. That the premises are occupied by the state of New York, or any
public corporation, including a public corporation created pursuant to
agreement or compact with another state or the dominion of Canada,
improvement district or other political subdivision of the state where
it is the purchaser, user or consumer.
5. That the premises are occupied by the United Nations or other
world-wide international organizations of which the United States of
America is a member.
6. That the premises are occupied by a corporation, or association, or
trust, or community chest, fund or foundation, organized and operated
exclusively for religious, charitable, or educational purposes, or for
the prevention of cruelty to children or animals, no part of the net
earnings of which inures to the benefit of any private shareholder or
individual, and no substantial part of the activities of which is carry-
ing on propaganda, or otherwise attempting to influence legislation;
provided, however, that nothing in this subdivision shall include an
organization operated for the primary purpose of carrying on a trade or
business for profit, whether or not all of its profits are payable to
one or more organizations described in this subdivision.
7. That the premises are occupied by the United States of America
under circumstances which make the premises immune from taxation.
§ 11-1007 Returns; payment of taxes. On or before the twentieth day
of June in each year, every person subject to a tax hereunder, shall
file a return with the commissioner of finance on the form to be
furnished by the commissioner of finance. At the time of filing such
return each person shall pay to the commissioner of finance the tax
imposed pursuant to this chapter. Such tax shall be due and payable
annually upon the twentieth day of June, whether or not a return is
filed.
§ 11-1008 Presumption and burden of proof. It shall be presumed that
the occupant of any premises is subject to the tax until the contrary is
established, and the burden of proving that any occupation of premises
is exempt from taxation shall be upon such occupant.
§ 11-1009 Determination of tax by the commissioner of finance. a. If
a return required by this chapter is not filed, or if a return when
filed is incorrect or insufficient and the maker fails to file a
corrected or sufficient return within twenty days after it is required
by a notice from the commissioner of finance, the commissioner of
finance shall tentatively determine the amount of tax due from such
information as he or she may be able to obtain and, if necessary, may
estimate the tax on the basis of external indices. The commissioner of
finance shall give notice of the amount so fixed to the person liable
for the tax. Unless the person against whom the tax is assessed shall
within fifteen days after the giving of such notice apply in writing to
the commissioner of finance for a hearing to correct such assessment,
such notice shall constitute a final and irrevocable determination of
the tax. After such hearing the commissioner of finance shall give
notice of his or her decision to the person liable for the tax.
A. 10030 779
b. Such determination and the decision of the commissioner of finance
upon any application to correct may be reviewed for error, illegality or
unconstitutionality or for any reason whatsoever by a proceeding under
article seventy-eight of the civil practice law and rules in the nature
of a certiorari proceeding if application therefor is made to the
supreme court within thirty days after the giving of notice thereof.
Whenever under this chapter a proceeding to review is instituted, it
shall not be allowed unless the amount of any tax sought to be reviewed,
with penalties thereon, if any, shall be first deposited with the
commissioner of finance, and an undertaking filed with the commissioner
of finance, in such amount and with such sureties as a justice of the
supreme court shall approve, to the effect that if such proceeding be
dismissed or the tax confirmed, such person will pay all costs and
charges which may accrue in the prosecution of such proceeding.
§ 11-1010 Refunds. The commissioner of finance shall refund any tax
erroneously, illegally or unconstitutionally collected by or paid to him
or her, under protest in writing, stating in detail the ground or
grounds of the protest, if application therefor shall be made to the
commissioner of finance within one year from the payment thereof. For
like cause and within the same period a refund may be made on the initi-
ative of the commissioner of finance. Whenever a refund is made the
commissioner of finance shall state his or her reasons therefor in writ-
ing. A person shall not be entitled to a hearing in connection with any
application for a refund if he or she has already been given the oppor-
tunity of a hearing as provided in section 11-1009 of this chapter. No
refund shall be made of a tax or penalty paid pursuant to a determi-
nation of the commissioner of finance as provided in section 11-1009 of
this chapter, unless the commissioner of finance, after a hearing as in
said section provided, or of his or her own motion, shall have reduced
the tax or penalty, or it shall have been established in a proceeding
under article seventy-eight of the civil practice law and rules that
such determination was erroneous, illegal, unconstitutional, or other-
wise improper, in which event a refund with interest shall be made as
provided upon the determination of such proceeding. An application for
a refund made as provided in this chapter shall be deemed an application
for a revision of any tax or penalty complained of and the commissioner
of finance may receive evidence with respect thereto. After making his
or her determination the commissioner of finance shall give notice ther-
eof to the person interested who shall be entitled to review such deter-
mination by a proceeding under article seventy-eight of the civil prac-
tice law and rules if application to the supreme court be made therefor
within thirty days after such determination and an undertaking shall
first be filed with the commissioner of finance in such amount and with
such sureties as a justice of the supreme court shall approve, to the
effect that if such order be dismissed or the tax confirmed, the appli-
cant for the order will pay all costs and charges which may accrue in
the prosecution of the certiorari proceeding.
§ 11-1011 Remedies exclusive. The remedies provided by section
11-1009 of this chapter shall be the exclusive remedies available to any
person for the review of tax liability imposed by this chapter; and no
determination of tax or determination on an application for refund shall
be enjoined or reviewed by an action for declaratory judgment, an action
for money had and received or by any legal or equitable action or
proceeding other than one under article seventy-eight of the civil prac-
tice law and rules.
A. 10030 780
§ 11-1012 Reserves. In cases where the taxpayer has paid any tax
under written protest stating in detail the ground or grounds therefor,
or has applied for a refund and an order under article seventy-eight of
the civil practice law and rules to review a determination adverse to
the taxpayer on the taxpayer's application for refund, or has deposited
the amount of tax assessed in connection with a proceeding under section
11-1009 of this chapter the commissioner of finance shall set up appro-
priate reserves to meet any decision adverse to the city.
§ 11-1013 Proceeding to recover tax. a. The commissioner of finance
may issue a warrant directed to any officer or employee of the depart-
ment of finance commanding him or her to levy upon and sell the real and
personal property of the person from whom the tax is due for the payment
of the amount thereof, with penalties, and the cost of executing the
warrants, and to return such warrant to the commissioner of finance and
to pay to him or her the money collected by virtue thereof, and in the
execution thereof such officer or employee shall have all the powers
conferred by law upon sheriffs, but he or she shall be entitled to no
fee or compensation in excess of the actual expenses paid in the
performance of such duty. If a warrant is returned not satisfied in
full, the commissioner of finance may from time to time issue new
warrants and shall also have the same remedies to enforce the amount due
pursuant to this section as if the city had recovered judgment therefor
and the execution thereon had been returned not satisfied. A copy of
any warrant issued may be filed with the county clerk in Richmond county
and thereupon such clerk shall enter in the judgment docket the name of
the person mentioned in the warrant and the amount of the tax and penal-
ty for which the warrant is issued and the date when such copy is filed.
Thereupon the amount of such warrant so docketed shall become a lien
upon the title to and interest in the real and personal property of the
person against whom the warrant is issued.
b. As an additional or alternate remedy the commissioner of finance
may request the corporation counsel to bring an action in the name of
the city to enforce payment of a tax or penalty which any person has
failed to pay.
c. The commissioner of finance, if he or she finds that the interests
of the city will not thereby be jeopardized, and upon such conditions as
the commissioner of finance may require, may release any property from
the lien of any warrant or vacate such warrant for unpaid taxes, addi-
tions to tax, penalties and interest filed pursuant to subdivision a of
this section, and such release or vacating of the warrant may be
recorded in the office of any recording officer in which such warrant
has been filed. The clerk shall thereupon cancel and discharge as of the
original date of docketing the vacated warrant.
§ 11-1014 Notices and limitation of time. a. Any notice authorized or
required under the provisions of this chapter may be given by mailing
the same to the person for whom it is intended in a post paid envelope
addressed to such person at the address given in the return filed by
such person pursuant to the provisions of this chapter or if no return
has been filed then to such address as may be obtainable. The mailing
of such notice shall be presumptive evidence of the receipt of the same
by the person to whom addressed. Any period of time which is determined
according to the provisions of this chapter by the giving of notice
shall commence to run from the date of mailing of such notice.
b. The provisions of the civil practice law and rules relative to
limitations of time for the enforcement of a civil remedy shall not
apply to any proceeding or action by the city taken to levy, appraise,
A. 10030 781
assess, determine or enforce the collection of any tax or penalty
provided by this chapter.
§ 11-1015 Penalties and interest. a. Any person failing to file a
return or corrected return or to pay any tax or any portion thereof that
may be required by this chapter shall be subject to a penalty of five
times the amount of the tax due, plus five per centum of such tax for
each month of delay or fraction thereof, but the commissioner of
finance, if satisfied that the delay was excusable, may remit all or any
part of such penalty, but not interest. Penalties shall be paid to the
commissioner of finance and disposed of in the manner as other receipts
under this chapter. Unpaid penalties may be enforced in the same manner
as the tax imposed by this chapter.
b. Any person filing or causing to be filed any return, certificate,
affidavit or statement required or authorized by this chapter, which is
wilfully false and any person who shall fail to file a return or to
furnish a statement or other information as required under this chapter,
shall be guilty of a misdemeanor, punishment for which shall be a fine
of not more than one thousand dollars or imprisonment for not more than
one year, or both such fine and imprisonment.
A certificate of the commissioner of finance to the effect that a tax
has not been paid, that a return has not been filed, or that information
has not been supplied pursuant to the provisions of this chapter, shall
be prima facie evidence thereof.
§ 11-1016 General powers of the commissioner of finance. In the
administration of this chapter, the commissioner of finance is author-
ized to:
1. Make and publish reasonable rules and regulations as may be neces-
sary for the exercise of the commissioner's powers and the performance
of the commissioner's duties under this chapter.
2. Assess the tax authorized to be imposed under this chapter.
3. Subpoena and require the attendance of witnesses and the production
of books, papers and other documents, and to take testimony and proofs,
under oath, with reference to any matter within the line of the commis-
sioner's official duty under this chapter.
4. Delegate the commissioner's functions hereunder to a deputy commis-
sioner of finance or other employee or employees of the department of
finance.
5. Prescribe methods for determining the rental values of premises,
the occupant of which is taxable pursuant to the provisions of this
chapter.
6. Require any person who receives or is entitled to receive a consid-
eration for the occupation of premises to furnish a statement to the
commissioner of finance, upon his or her request, containing information
as to the name of each occupant and rental value of each for the occupa-
tion of such premises.
7. Nothing contained in section 11-1017 of this chapter or in any
other provision of this chapter shall be construed to limit the authori-
ty of the commissioner of finance, hereby authorized, to furnish any
information, whether or not contained in a return, to the tax commission
or any other agency or department of the state of New York, or to the
treasury department of the United States, or to any agency of the city
of Staten Island, or to the district attorney of Richmond county.
8. To extend, for cause shown, the time for filing any return for a
period not exceeding twenty days.
§ 11-1017 Returns to be secret. Except in accordance with judicial
order, or upon subpoena issued by a court of competent jurisdiction, it
A. 10030 782
shall be unlawful for the commissioner of finance or any officer or
employee of the city to divulge or make known in any manner, any infor-
mation contained in any return required under this chapter. Nothing in
this section shall be construed to prohibit the delivery to a taxpayer
of a certified copy of any return filed by the taxpayer, nor to prohibit
the publication of statistics so classified as to prevent the identifi-
cation of particular returns, or the inspection by the corporation coun-
sel of the return to any taxpayer who shall bring action or proceeding
to set aside or review the tax based thereon, or against whom an action
or proceeding has been instituted or is contemplated for the collection
of a tax or penalty. Returns shall be preserved for three years and
thereafter until the commissioner of finance orders them to be
destroyed.
§ 11-1018 Disposition of revenue. All revenues and moneys heretofore
or hereafter collected resulting from the imposition of taxes and penal-
ties imposed by this chapter shall be deposited in the city treasury,
and credited to a separate account. During each fiscal year, an amount
not in excess of the amount of the subsidies to be made, and the amount
of indebtedness incurred for low rent or slum clearance projects to be
paid, during such fiscal year shall be charged to such account and cred-
ited to the general fund. No other payments shall be charged to such an
account. The mayor may contract to make capital or periodic subsidies
to the city housing authority in aid of a low rent project, or may incur
indebtedness for a low rent slum clearance project, but such periodic
subsidies shall not be contracted for a period longer than the life of
such project and in no event for more than fifty years. If the amount
of any such periodic subsidy shall be equal to or greater than the
interest on and the amounts required annually for the payment of the
indebtedness contracted by the authority on account of such project in
each year, such contract shall constitute a guarantee of the principal
of and the interest on such indebtedness, and such contract and the
payments thereunder may be pledged by the authority as security in addi-
tion to all other security which the authority may give for such bonds.
No such contract or periodic subsidies shall be made until the plan for
such project shall have been approved in the manner provided by the
public housing law.
§ 11-1019 Application; construction. If any provision of this chapter
shall be adjudged by any court of competent jurisdiction to be invalid,
such judgment shall not affect, impair or invalidate the remainder ther-
eof, but shall be confined in its operation to the provision directly
involved in the controversy in which such judgment shall have been
rendered. This chapter shall be construed in conformity with the public
housing law.
CHAPTER 11
UTILITY TAX
§ 11-1101 Definitions. When used in this chapter the following terms
shall mean or include:
1. "Person." Includes any individual, partnership, society, associ-
ation, joint-stock company, corporation, estate, receiver, lessee, trus-
tee, assignee, assignee of rents, referee, or any other person acting in
a fiduciary or representative capacity, whether appointed by a court or
otherwise, and any combination of individuals.
2. "Comptroller." The comptroller of the city.
3. "Commissioner of finance." The commissioner of finance of the
city.
A. 10030 783
4. "Gross income." All receipts received in or by reason of any sale
made including receipts from the sale of residuals and by-products,
except sale of real property, or service rendered in the city, including
cash, credits and property of any kind or nature, whether or not such
sale is made or such service is rendered for profit, without any
deduction therefrom on account of the cost of the property sold, the
cost of material used, labor or services, delivery costs, any other
costs whatsoever, interest or discount paid, or any other expense what-
soever; also profits from the sale of securities; also profits from the
sale of real property growing out of the ownership or use of or interest
in such property; also profit from the sale of personal property, other
than property of a kind which would properly be included in the invento-
ry of the taxpayer if on hand at the close of the taxable period for
which a return is made; also receipts from interest, dividends and
royalties without any deductions therefrom for any expense whatsoever
incurred in connection with the receipt thereof, and also gains or
profits from any source whatsoever; but shall not include gross income
of railroads from the transportation of freight, gross income from the
operation of hotels, multiple dwellings or office buildings by persons
in the business of operating or leasing sleeping or parlor railroad cars
or of operating railroads other than street surface, rapid transit,
subway and elevated railroads, or interest or dividends received from a
corporation by such persons or by persons subject to taxation under the
provisions of section one hundred eighty-six-a of the tax law. Rents or
rentals shall not be deemed to be gross receipts subject to tax, except
rents or rentals derived from facilities used in the public service;
provided, however, that in the case of persons in the business of oper-
ating or leasing sleeping or parlor railroad cars or of operating rail-
roads other than street surface, rapid transit, subways and elevated
railroads, such last-mentioned rents or rentals derived from other such
utilities with respect to the operation of terminal facilities shall not
be deemed to be gross income subject to tax except for the amount in
excess of a user proportion of New York city real property and special
franchise taxes and expenses of maintenance and operation. Notwithstand-
ing anything to the contrary in this subdivision or any other provision
of law, for taxable periods beginning on or after August first, two
thousand two, gross income shall include eighty-four percent of charges
for the provision of mobile telecommunications services where the place
of primary use of the mobile telecommunications services is within the
territorial limits of the city except to the extent that such inclusion
would result in the taxation of charges for the provision of mobile
telecommunications services that is prohibited by federal law.
5. "Gross operating income." Includes receipts received in or by
reason of any sale made or service rendered, of the property and
services specified in subdivision seven of this section in the city,
including cash, credits and property of any kind or nature, whether or
not such sale is made or such service is rendered for profit, without
any deduction therefrom on account of the cost of the property sold, the
cost of materials used, labor or other services, delivery costs or any
other costs whatsoever, interest or discount paid or any other expenses
whatsoever, provided however, that if a vendor of utility service
purchases gas, electricity, steam, water or refrigeration or gas, elec-
tric, steam, water or refrigeration service in a transaction the
receipts from which are not subject to the tax imposed under this chap-
ter, the gross operating income derived by such vendor of utility
service from the resale of such gas, electricity, steam, water or
A. 10030 784
refrigeration or such gas, electric, steam, water or refrigeration
service to its tenants as an incident to such vendor's activity of rent-
ing premises to tenants, shall, if subject to the tax imposed under this
chapter on such vendor, be conclusively presumed to be equal to the
amount of such vendor's cost, including any associated transportation
cost, for the purchase of such gas, electricity, steam, water or refrig-
eration or gas, electric, steam, water or refrigeration service for
resale by such vendor. Notwithstanding anything to the contrary in this
subdivision or any other provision of law, for taxable periods beginning
on or after August first, two thousand two, gross operating income shall
include eighty-four percent of charges for the provision of mobile tele-
communications services where the place of primary use of the mobile
telecommunications services is within the territorial limits of the city
except to the extent that such inclusion would result in the taxation of
charges for the provision of mobile telecommunications services that is
prohibited by federal law.
6. "Utility." Every person subject to the supervision of the depart-
ment of public service and, for taxable periods beginning on or after
August first, two thousand two, every person, whether or not supervised
by the department of public service, eighty percent or more of the gross
receipts of which consists of charges for the provision of mobile tele-
communications services to customers. Notwithstanding anything to the
contrary in any other provision of law, for purposes of this subdivi-
sion, the gross receipts of a person shall not include the gross
receipts of any other related or unrelated person.
7. "Vendor of utility services." Every person not subject to the
supervision of the department of public service, and not otherwise a
utility as defined in subdivision six of this section, who furnishes or
sells gas, electricity, steam, water or refrigeration, or furnishes or
sells gas, electric, steam, water, refrigeration or telecommunications
services, or who operates omnibuses, whether or not such operation is on
the public streets; regardless of whether such furnishing, selling or
operation constitutes the main activity of such person or is merely
incidental thereto.
8. "Return." Includes any return filed or required to be filed as
provided under this chapter.
9. "Telecommunications services." Telephony or telegraphy, or tele-
phone or telegraph service, including, but not limited to, any trans-
mission of voice image, data, information and paging, through the use of
wire, cable, fiber-optic, laser, microwave, radio wave, satellite or
similar media or any combination thereof and shall include services that
are ancillary to the provision of telephone service, such as, but not
limited to, dial tone, basic service, directory information, call
forwarding, caller-identification, call waiting and the like, and also
include any equipment and services provided therewith; provided, howev-
er, that the definition of telecommunication services shall not apply to
separately stated charges for any service that alters the substantive
content of the message received by the recipient from that sent; and
that such services shall not include (i) cable television services that
consist of the transmitting to subscribers of programs broadcast by one
or more television or radio stations or any other programs originated by
any person by means of wire, cable, microwave or any other means or (ii)
air safety and navigation services where such telecommunication service
is provided by an organization, at least ninety percent of which, if a
corporation, ninety percent of the voting stock of which, is owned,
directly or indirectly, by air carriers, and which organization's prin-
A. 10030 785
cipal function is to fulfill the requirements of (a) the federal
aviation administration, or the successor thereto, or (b) the interna-
tional civil aviation organization, or the successor thereto, relating
to the existence of a communication system between aircraft and
dispatcher, aircraft and air traffic control or ground station and
ground station, or any combination of such, for the purposes of air
safety and navigation.
10. "Limited fare omnibus company." An omnibus company whose principal
source of revenue is derived from the daily transportation of passengers
wholly within the city on a route or zoned portion thereof pursuant to a
franchise agreement with, or consent of, the city, at the following
fares: for the period from August first, nineteen hundred sixty-five
until and including December thirty-first, nineteen hundred seventy-
five, at a fare not in excess of thirty-five cents per passenger; for
the period from January first, nineteen hundred seventy-six until and
including June twenty-seventh, nineteen hundred eighty, at a fare not in
excess of fifty cents per passenger; for the period from June twenty-
eighth, nineteen hundred eighty until and including August thirty-first,
nineteen hundred eighty, at a fare not in excess of sixty cents per
passenger; for the period from September first, nineteen hundred eighty
and thereafter, at a fare not in excess of the regular rate of fare
charged per passenger for comparable service both local and express on
regular rapid transit and surface lines operated by the New York city
transit authority. For purposes of this subdivision, the term "regular
rate of fare" shall be exclusive of fares for special train or bus
service, or additional charges for bridge or tunnel tolls or transfer
privileges.
11. "Commuter service." Mass transportation service, exclusive of
limited stop service to airports, racetracks or any place where enter-
tainment, amusement or sport activities are held or where recreational
facilities are supplied, provided pursuant to a franchise with, or
consent of, the city of New York.
12. "Tax appeals tribunal." The tax appeals tribunal established by
section one hundred sixty-eight of the charter of the preceding munici-
pality.
13. "Base Year." Means the calendar year ending immediately prior to
the calendar year containing the taxable period or periods for which a
return is required to be filed pursuant to the provisions of section
11-1104 of this chapter.
14. "Taxable Period." Means the period for which a return is required
to be filed pursuant to the provisions of this chapter and shall be
either (i) the semiannual period beginning the first day of January or
the first day of July of the calendar year, or (ii) the calendar month.
15. "Premises." Means for purposes of section 11-1102 of this chapter,
any real property or part thereof, and any structure thereon or space
therein.
16. "Tenant." Means a person paying, or required to pay, rent for
premises as a lessee, sublessee, licensee or concessionaire.
17. "Mobile telecommunications services." Telecommunications services
that are commercial mobile radio services.
18. "Commercial mobile radio services." Commercial mobile radio
services as defined in section 20.3 of title forty-seven of the Code of
Federal Regulations as in effect on June first, nineteen hundred nine-
ty-nine.
19. "Charges for mobile telecommunications services." Any charge for,
or associated with, the provision of mobile telecommunications services
A. 10030 786
and any charge for, or associated with, a service provided as an adjunct
to mobile telecommunications services that is billed to the customer by
or for the customer's home service provider regardless of whether indi-
vidual transmissions originate or terminate within the licensed service
area of the home service provider.
20. "Place of primary use." The street address representative of where
the customer's use of the mobile telecommunications services primarily
occurs, which must be (i) the residential street address or the primary
business street address of the customer; and (ii) within the licensed
service area of the home service provider.
21. "Licensed service area." The geographic area in which the home
service provider is authorized by law or contract to provide commercial
mobile radio services to the customer.
22. "Home service provider." The facilities-based carrier or reseller
with which the customer contracts for the provision of mobile telecommu-
nications services.
23. "Customer." The person or entity that contracts with the home
service provider for mobile telecommunications services. If the end user
of mobile telecommunications services is not the contracting party,
then, solely for purposes of subdivision twenty of this section, the
term "customer" shall mean the end user of the mobile telecommunications
services. The term customer does not include a reseller of mobile tele-
communications services, or a serving carrier under an arrangement to
serve the customer outside the home service provider's licensed service
area.
24. "Reseller." A provider who purchases telecommunications services
from another telecommunications service provider and then resells, uses
as a component part of, or integrates the purchased services into a
mobile telecommunications service. The term reseller does not include a
serving carrier with which a home service provider arranges for the
services to its customers outside the home service provider's licensed
service area.
25. "Serving carrier." A facilities-based carrier providing mobile
telecommunications service to a customer outside a home service provid-
er's or reseller's licensed service area.
26. "Cogeneration facility" means (i) a facility that was in operation
before January first, two thousand four and that produces electric ener-
gy and steam or other forms of useful energy, such thermal energy, that
are supplied to and used by tenants and/or occupants of a cooperative
corporation for industrial, commercial, or residential heating or cool-
ing purposes; or (ii) a cogeneration facility, as defined in clause (i)
of this subparagraph, that has been replaced by any other facility used
to generate electricity and steam or other forms of useful energy, such
as thermal energy, when such electricity and steam or other forms of
useful energy, such as thermal energy, are supplied to and used by
tenants and/or occupants of a cooperative corporation.
27. "Enhanced zip code." A United States postal zip code of nine or
more digits.
28. "Cooperative corporation" means a corporation organized under the
laws of New York, at least some of the stockholders of which are enti-
tled, by reason of the stockholders' ownership interest of stock in the
corporation, to occupy for dwelling purposes an apartment in a building
owned by the corporation pursuant to a lease or occupancy agreement with
the corporation.
§ 11-1102 Imposition of excise tax. a. Notwithstanding any other
provisions of law to the contrary, for the privilege of exercising its
A. 10030 787
franchise or franchises, or of holding property, or of doing business in
the city, on or after August first, nineteen hundred sixty-five, every
utility shall pay to the commissioner of finance an excise tax which
shall be equal to two per centum of its gross income until and including
December thirty-first, nineteen hundred sixty-five, and shall be equal
to two and thirty-five hundredths per centum thereafter, except that the
rate as to persons engaged in the business of operating omnibuses with a
carrying capacity of more than seven persons shall be one per centum
until and including December thirty-first, nineteen hundred sixty-five,
and one and seventeen hundredths per centum thereafter, and except that
as to persons engaged in the business of operating or leasing sleeping
and parlor railroad cars or of operating railroads other than street
surface, rapid transit, subway and elevated railroads, the rate shall be
three per centum until and including December thirty-first, nineteen
hundred sixty-five, and three and fifty-two one hundredths per centum
thereafter, and every vendor of utility services in the city shall pay
to the commissioner of finance an excise tax which shall be equal to two
per centum of its gross operating income until and including December
thirty-first, nineteen hundred sixty-five, and shall be equal to two and
thirty-five one hundredths per centum thereafter, except that as to
persons engaged in the business of operating omnibuses with a carrying
capacity of more than seven persons other than omnibuses used exclu-
sively for the transportation of children to and from schools operated
under contracts made pursuant to the provisions of the education law,
and not subject to the jurisdiction of the department of public service,
the rate shall be one per centum of its gross operating income until and
including December thirty-first, nineteen hundred sixty-five, and one
and seventeen hundredths per centum thereafter. Such tax shall be in
addition to any and all other taxes, charges and fees imposed by any
other provision of law and shall be paid at the time and in the manner
provided in this section, but any person to the extent that it is
subject to tax pursuant to this section shall not be liable to any tax
under any other of the local laws of the preceding municipality as it
existed January first, nineteen hundred ninety-four enacted pursuant to
chapter ninety-three of the laws of nineteen hundred sixty-five as
amended, or the former article two-b of the general city law, with
respect to its gross income or gross operating income taxed pursuant to
this section, as the case may be.
b. So much of the gross income of a utility shall be excluded from the
measure of the tax imposed by this chapter, as is derived from sales for
resale to vendors of utility services validly subject to the tax imposed
by this chapter, except to the extent that such gross income is derived
from sales of gas, electricity, steam, water or refrigeration or sales
or rendering of gas, electric, steam, water or refrigeration service to
a vendor of utility services for resale to its tenants as an incident to
such vendor's activity of renting premises to tenants.
c. For the purpose of proper administration of this chapter and to
prevent evasion of the tax imposed by this section, it shall be presumed
that the gross income or gross operating income of any person taxable
pursuant to this section is taxable and is derived from business
conducted wholly within the territorial limits of the city until the
contrary is established, and the burden of proving that any part of its
gross income or gross operating income is not so derived shall be upon
such person. Notwithstanding anything to the contrary in this subdivi-
sion or in any provision of section twenty-b of the general city law or
any other provision of law, for taxable periods beginning on or after
A. 10030 788
August first, two thousand two, gross income and gross operating income
derived from the provision of mobile telecommunications services shall
be deemed to be derived from business conducted wholly within the terri-
torial limits of the city where the place of primary use of the mobile
telecommunications services is within the territorial limits of the
city.
d. The tax imposed by this chapter shall be inapplicable to the gross
income received by a limited fare omnibus company until and including
August thirty-first, nineteen hundred eighty. Thereafter, such tax shall
be applicable to such gross income received as follows: (1) for gross
income received from commuter service from September first, nineteen
hundred eighty until and including December thirty-first, nineteen
hundred eighty-three, the rate of tax shall be one hundredth of one per
centum; (2) for gross income received from commuter service from January
first, nineteen hundred eighty-four and thereafter, the rate of tax
shall be one tenth of one per centum; and (3) for gross income received
from all other sources, the rate of tax shall be as provided in subdivi-
sion a of this section.
e. The gross operating income of a vendor of utility services derived
from sales to its tenants of gas, electricity, steam, water, or refrig-
eration or sales or rendering to its tenants of gas, electric, steam,
water or refrigeration service, as an incident to such vendor's activity
of renting premises to tenants, shall be excluded from the measure of
the tax imposed by this chapter, but, with regard to sales to its
tenants of gas, electricity, or steam or sales or rendering to its
tenants of gas, electric or steam service, only to the extent that the
tax imposed by this chapter has been validly paid or accrued with
respect to a prior sale of such gas, electricity or steam or sale or
rendering of gas, electric or steam service.
f. (1) Notwithstanding anything contained in this chapter to the
contrary, for taxable periods beginning on or after August first, two
thousand two, if a partnership is subject to the tax imposed by this
chapter as a utility or as a vendor of utility services, no person who
is a partner in such a partnership shall be subject to the tax imposed
by this chapter on such partner's distributive share of the gross income
or gross operating income of such partnership.
(2) If a person is a partner in a partnership subject to the tax
imposed by this chapter and that person is separately subject to the
supervision of the state department of public service or is a utility or
a vendor of utility services based on its activities exclusive of any
activities of such partnership, for taxable periods beginning on or
after August first, two thousand two, such person shall be subject to
the tax imposed by this chapter only on its separate gross income or
separate gross operating income, which shall not include such person's
distributive share of the gross income or gross operating income of such
partnership.
(3) For purposes of this subdivision, the term "partner" shall include
a person who receives a distributive share of the gross income or gross
operating income, directly or indirectly through one or more tiers of
partnerships, of a partnership subject to the tax imposed by this chap-
ter.
g. Notwithstanding anything else contained in this chapter to the
contrary, for the taxable periods beginning on or after January first,
two thousand six, if a cooperative corporation containing at least
fifteen hundred apartments furnishes or sells electricity, steam,
refrigeration or water, or furnishes or sells electric, steam, refriger-
A. 10030 789
ation or water services that are (i) metered, (ii) generated or produced
by a cogeneration facility owned or operated by such cooperative corpo-
ration, and (iii) such electricity, steam, refrigeration or water and/or
electric, steam, refrigeration or water services are distributed to
tenants and/or occupants of a cooperative corporation, then such cooper-
ative corporation shall pay to the commissioner of finance an excise tax
which shall be equal to zero per centum of its gross income or its gross
operating income, as the case may be.
§ 11-1103 Records to be kept. Every person subject to tax pursuant to
this chapter shall keep records of its business and in such form as the
commissioner of finance may by regulation require. Such records shall
be offered for inspection and examination at any time upon demand by
such commissioner or his or her duly authorized agent or employee and
shall be preserved for a period of three years, except that the commis-
sioner of finance may consent to their destruction within that period or
may require that they be kept longer.
§ 11-1104 Returns; requirements as to. a. Except as otherwise
provided in subdivision e of this section with respect to taxable peri-
ods beginning after nineteen hundred ninety-eight, on or before the
twenty-fifth day of September, nineteen hundred sixty-five, and on or
before the twenty-fifth day of every month thereafter, every person
subject to tax pursuant to this chapter shall file a return with the
commissioner of finance on a form to be prescribed by such commissioner.
Such return shall state the gross income or gross operating income as
the case may be for the preceding calendar month, and shall contain any
other data, information or other matter which the commissioner of
finance may require to be included therein. The commissioner of finance
may require at any further time a supplemental return, which shall
contain any data upon such matters as such commissioner may specify.
Notwithstanding the provisions of this subdivision and notwithstanding
the provisions of subdivision e of this section, a vendor of utility
services, all of whose gross operating income is excluded from the meas-
ure of the tax imposed by this chapter pursuant to subdivision e of
section 11-1102 of this chapter during any taxable period, shall not be
required to file a return for such taxable period, provided, however,
that on or before the first day of September of each year, any such
vendor of utility services who was not required to file a return for any
taxable period during the period covered by the statement required to be
filed by such date pursuant to subdivision a of section 11-208.1 of this
title shall file an information return covering such period in such form
and containing such information as the commissioner of finance may spec-
ify.
b. The commissioner of finance may require amended returns to be filed
within twenty days after notice and to contain the information specified
in the notice.
c. If a return required by this chapter is not filed or if a return
when filed is incorrect or insufficient on its face, the commissioner of
finance shall take the necessary steps to enforce the filing of such
return or of a corrected return.
d. Where the state tax commission changes or corrects a taxpayer's
sales and compensating use tax liability with respect to the purchase or
use of items for which a sales or compensating use tax credit against
the tax imposed by this chapter was claimed, the taxpayer shall report
such change or correction to the commissioner of finance within ninety
days of the final determination of such change or correction, or as
required by the commissioner of finance, and shall concede the accuracy
A. 10030 790
of such determination or state wherein it is erroneous. Any taxpayer
filing an amended return or report with the state tax commission relat-
ing to the purchase or use of such items shall also file within ninety
days thereafter a copy of such amended return or report with the commis-
sioner of finance.
e. With respect to taxable periods beginning after nineteen hundred
ninety-eight, notwithstanding the provisions of subdivision a of this
section, if the amount of tax imposed pursuant to this section on any
person in the base year does not exceed one hundred thousand dollars,
the taxable period for which such person is required to file a return is
the semiannual period described in paragraph i of subdivision fourteen
of section 11-1101 of this chapter, and such person shall file a return
for each semiannual period of the first calendar year beginning after
the base year on or before the twenty-fifth day of the month following
the end of each such taxable period. Such return shall be filed with the
commissioner of finance on a form to be prescribed by such commissioner.
Such return shall state the gross income or gross operating income as
the case may be for the preceding taxable period and shall contain any
other data, information or other matter which the commissioner of
finance may require to be included therein. The commissioner of finance
may require at any further time a supplemental return, which shall
contain any data upon such matters as such commissioner may specify. For
the purposes of this subdivision, if the amount of tax imposed pursuant
to this chapter on such person in the base year is for a period of less
than one year, the amount of tax imposed on such person shall be annual-
ized by multiplying the amount of tax imposed by a fraction, the denomi-
nator of which is the number of months or parts thereof during which the
person was subject to the tax imposed pursuant to this chapter and the
numerator of which is twelve. Notwithstanding the provisions of this
subdivision, a person that first becomes subject to the tax pursuant to
this chapter shall file a return for each month in the calendar year in
which such person first becomes subject to such tax in accordance with
subdivision a of this section.
§ 11-1105 Payment of tax; credit for certain sales and compensating
use taxes. a. At the time of filing each return, as provided under
section 11-1104 of this chapter, each person taxable pursuant to this
chapter shall pay to the commissioner of finance the taxes imposed by
this chapter upon its gross income or gross operating income, as the
case may be, for the taxable period covered by such return, less any
credit to which such person may be entitled under subdivision b of this
section. Such taxes shall be due and payable on the last day on which
the return for such period is required to be filed, regardless of wheth-
er a return is filed or whether the return which is filed correctly
indicates the amount of tax due.
b. (1) A taxpayer shall be allowed a credit against the taxes imposed
by this chapter for the amount of sales and compensating use taxes
imposed by section eleven hundred seven of the tax law which became
legally due on or after, and which were paid on or after, July first,
nineteen hundred seventy-seven but within the taxable period for which a
credit is claimed, with respect to the purchase or use by the taxpayer
of machinery or equipment for use or consumption directly and predomi-
nantly in the production of steam for sale, by manufacturing, process-
ing, generating, assembling, refining, mining or extracting, or tele-
phone central office equipment or station apparatus or comparable
telegraph equipment for use directly and predominantly in receiving at
destination or initiating and switching telephone or telegraph communi-
A. 10030 791
cation, but not including parts with a useful life of one year or less
or tools or supplies used in connection with such machinery, equipment
or apparatus.
(2) The amount of the credit provided in paragraph one of this subdi-
vision shall be limited to the amount of such sales and compensating use
taxes paid during the taxable period covered by the return under this
chapter on which the credit is taken less the amount of any credit or
refund of such sales and compensating use taxes during such taxable
period. If such credit exceeds the amount of tax under this chapter
payable for the taxable period in question, such excess amount shall be
refunded or credited except in the case of a vendor of utility services
who is entitled to a credit and/or refund for such sales and compensat-
ing use taxes under chapter five or six of this title. The credit
allowed under this subdivision shall be deemed an erroneous payment of
tax by the taxpayer to be credited or refunded in accordance with the
provisions of section 11-1108 of this chapter, except as otherwise
provided in this paragraph.
(3) Where the taxpayer receives a refund or credit of any tax imposed
under section eleven hundred seven of the tax law for which the taxpayer
has claimed a credit under the provisions of this subdivision in a prior
taxable period, the amount of such refund or credit shall be added to
the tax imposed by section 11-1102 of this chapter of the taxable period
in which such refund or credit of tax under section eleven hundred seven
of the tax law is received.
§ 11-1105.1 Credit for rebates of charges for energy. A taxpayer shall
be allowed a credit against the amount of taxes imposed by this chapter
for the amount of special rebates and discounts made in accordance with
the provisions of section 22-602 of the code of the preceding munici-
pality and for the amount of special rebates and discounts made in
accordance with the provisions of section twenty-five-bb of the general
city law. Such credit shall be applied against the amount of tax other-
wise required to be paid as provided in subdivision a of section 11-1105
of this chapter and shall be claimed for the taxable period immediately
succeeding the taxable period in which such rebates or discounts are
made.
§ 11-1105.2 Relocation and employment assistance program credit. (a) A
taxpayer that has obtained the certifications required by chapter six-B
of title twenty-two of the code of the preceding municipality shall be
allowed a credit against the tax imposed by this chapter, provided,
however, that a taxpayer that is a vendor of utility services shall not
be allowed the credit against the tax imposed by this chapter unless it
elects as provided in subdivision (d) of section 22-622 of the code of
the preceding municipality to take the credit against the tax imposed by
this chapter. The amount of the credit shall be the amount determined by
multiplying one thousand dollars or, in the case of an eligible business
that has obtained pursuant to chapter six-B of such title twenty-two a
certification of eligibility dated on or after July first, two thousand,
for a relocation to eligible premises located within a revitalization
area defined in subdivision (n) of section 22-621 of the code of the
preceding municipality, three thousand dollars, by the number of eligi-
ble aggregate employment shares maintained by the taxpayer during the
calendar year with respect to particular premises to which the taxpayer
has relocated; provided, however, with respect to a relocation for which
no application for a certificate of eligibility is submitted prior to
July first, two thousand three, to eligible premises that are within a
revitalization area, if the date of such relocation as determined pursu-
A. 10030 792
ant to subdivision (j) of section 22-621 of the code of the preceding
municipality is on or after January first, nineteen hundred ninety-nine,
and before July first, two thousand, the amount to be multiplied by the
number of eligible aggregate employment shares shall be one thousand
dollars; provided, however, that no credit shall be allowed for the
relocation of any retail activity or hotel services; and provided that
in the case of an eligible business that has obtained pursuant to chap-
ter six-B of such title twenty-two certifications of eligibility for
more than one relocation, the portion of the total amount of eligible
aggregate employment shares to be multiplied by the dollar amount speci-
fied in this subdivision for each such certification of a relocation
shall be the number of total attributed eligible aggregate employment
shares determined with respect to such relocation pursuant to subdivi-
sion (o) of section 22-621 of the code of the preceding municipality.
For purposes of this subdivision, the terms "eligible aggregate employ-
ment shares", "relocate", "retail activity" and "hotel services" shall
have the meanings ascribed by section 22-621 of the code of the preced-
ing municipality.
(b) The credit allowed under this subdivision with respect to eligible
aggregate employment shares maintained with respect to particular prem-
ises to which the taxpayer has relocated shall be allowed for the taxa-
ble periods in the first calendar year during which such eligible aggre-
gate employment shares are maintained with respect to such premises and
for taxable periods in any of the twelve succeeding calendar years
during which eligible aggregate employment shares are maintained with
respect to such premises, provided that the credit allowed for the taxa-
ble periods in the twelfth succeeding calendar year shall be calculated
by multiplying the number of eligible aggregate employment shares main-
tained with respect to such premises in the twelfth succeeding calendar
year by the lesser of one and a fraction the numerator of which is the
number of days in the calendar year of relocation less the number of
days the eligible business maintained employment shares in the eligible
premises in the calendar year of relocation and the denominator of which
is the number of days in such twelfth succeeding year during which such
eligible aggregate employment shares are maintained with respect to such
premises. The credit allowable under this section shall be applied
against the amount of tax otherwise required to be paid for the last
taxable period of the calendar year as provided in subdivision a of
section 11-1105 of this chapter, shall be deducted from the taxpayer's
tax prior to the deduction of the credit provided in subdivision b of
such section, and shall be claimed on the tax return for the last taxa-
ble period of the calendar year. Except as provided in subdivision (c)
of this section, if the amount of the credit allowable under this subdi-
vision for any calendar year exceeds the tax imposed for such last taxa-
ble period in such calendar year, the excess may be carried over, in
order, to the immediately succeeding taxable periods in the five imme-
diately succeeding calendar years and, to the extent not previously
allowable, shall be applied against the tax otherwise required to be
paid for such periods. Such carryover credit shall be deducted from the
taxpayer's tax prior to the deduction of the credit provided in subdivi-
sion b of section 11-1105 of this chapter. With respect to the last
taxable period in a calendar year, the credit for such calendar year
shall be taken prior to any carryover credit. If in any period there are
carryover credits available from more than one year, such credits shall
be applied against the tax in the order in which they were earned with
the oldest available credit being taken first.
A. 10030 793
(c) In the case of a taxpayer that has obtained a certification of
eligibility pursuant to chapter six-B of title twenty-two of the code of
the preceding municipality dated on or after July first, two thousand
for a relocation to eligible premises located within the revitalization
area defined in subdivision (n) of section 22-621 of the code of the
preceding municipality, the credits allowed under this section, or in
the case of a taxpayer that has relocated more than once, the portion of
such credits attributed to such certification of eligibility pursuant to
subdivision (a) of this section, against the tax imposed by this chapter
for the calendar year of such relocation and for the four calendar years
immediately succeeding the calendar year of such relocation, shall be
deemed to be erroneous payments of tax by the taxpayer to be credited or
refunded, in accordance with the provisions of section 11-1108 of this
chapter. For such calendar years, such credits or portions thereof may
not be carried over to any succeeding taxable year; provided, however,
that this subdivision shall not apply to any relocation for which an
application for a certification of eligibility was not submitted prior
to July first, two thousand three unless the date of such relocation is
on or after July first, two thousand.
§ 11-1105.3 Lower Manhattan relocation employment assistance credit.
(a) A taxpayer that has obtained the certifications required by chapter
six-C of title twenty-two of the code of the preceding municipality
shall be allowed a credit against the tax imposed by this chapter,
provided, however, that a taxpayer that is a vendor of utility services
shall not be allowed the credit against the tax imposed by this chapter
unless it elects as provided in subdivision (d) of section 22-624 of the
code of the preceding municipality to take the credit against the tax
imposed by this chapter. The amount of the credit shall be the amount
determined by multiplying three thousand dollars by the number of eligi-
ble aggregate employment shares maintained by the taxpayer during the
calendar year with respect to eligible premises to which the taxpayer
has relocated; provided, however, that no credit shall be allowed for
the relocation of any retail activity or hotel services. For purposes of
this subdivision, the terms "eligible aggregate employment shares",
"eligible premises", "relocate", "retail activity" and "hotel services"
shall have the meanings ascribed by section 22-623 of the code of the
preceding municipality.
(b) The credit allowed under this section with respect to eligible
aggregate employment shares maintained with respect to eligible premises
to which the taxpayer has relocated shall be allowed for the taxable
period in which the relocation to eligible premises takes place and for
succeeding taxable periods in the calendar year of the relocation and in
any of the twelve succeeding calendar years during which eligible aggre-
gate employment shares are maintained with respect to eligible premises,
provided that the credit allowed for the taxable periods in the twelfth
succeeding calendar year shall be calculated by multiplying the number
of eligible aggregate employment shares maintained with respect to
eligible premises in the twelfth succeeding calendar year by the lesser
of one and a fraction the numerator of which is the number of days in
the calendar year of relocation less the number of days the taxpayer
maintained employment shares in eligible premises in the calendar year
of relocation and the denominator of which is the number of days in such
twelfth succeeding calendar year during which such eligible aggregate
employment shares are maintained with respect to such premises. The
credit allowable under this section shall be applied against the amount
of tax otherwise required to be paid for the last taxable period of the
A. 10030 794
calendar year as provided in subdivision a of section 11-1105 of this
chapter, shall be deducted from the taxpayer's tax prior to the
deduction of the credit provided in subdivision b of such section but
after the credit provided for in section 11-1105.2 of this chapter, and
shall be claimed on the tax return for the last taxable period of the
calendar year. Except as provided in subdivision (c) of this section, if
the amount of the credit allowable under this subdivision for any calen-
dar year exceeds the tax imposed for such last taxable period in such
calendar year, the excess may be carried over, in order, to the imme-
diately succeeding taxable periods in the five immediately succeeding
calendar years and, to the extent not previously allowable, shall be
applied against the tax otherwise required to be paid for such periods.
Such carryover credit shall be deducted from the taxpayer's tax prior to
the deduction of the credit provided in subdivision b of section 11-1105
of this chapter but after the credit provided for in section 11-1105.2
of this chapter. With respect to the last taxable period in a calendar
year, the credit for such calendar year shall be taken prior to any
carryover credit. If in any period there are carryover credits available
from more than one year, such credits shall be applied against the tax
in the order in which they were earned with the oldest available credit
being taken first.
(c) The credits allowed under this section, against the tax imposed by
this chapter for the calendar year of the relocation and for the four
taxable years immediately succeeding the calendar year of such relo-
cation, shall be deemed to be overpayments of tax by the taxpayer to be
credited or refunded, without interest, in accordance with the
provisions of section 11-1108 of this chapter. For such calendar years,
such credits or portions thereof may not be carried over to any succeed-
ing calendar year.
§ 11-1106 Determination of tax. In case the return required by this
chapter shall be insufficient or unsatisfactory or if such return is not
filed, the commissioner of finance shall determine the amount of the tax
due from such information as is obtainable, and if necessary the tax may
be estimated upon the basis of external indices. Notice of such determi-
nation shall be given to the person liable for the payment of the tax.
Such determination shall finally and irrevocably fix such tax unless the
person against whom it is assessed, within ninety days after the giving
of notice of such determination or, if the commissioner of finance has
established a conciliation procedure pursuant to section 11-124 of this
title and the taxpayer has requested a conciliation conference in
accordance therewith, within ninety days from the mailing of a concil-
iation decision or the date of the commissioner's confirmation of the
discontinuance of the conciliation proceeding, both (1) serves a peti-
tion upon the commissioner of finance and (2) files a petition with the
tax appeals tribunal for a hearing, or unless such commissioner of his
or her own motion shall redetermine the same. Such hearing and any
appeal to the tax appeals tribunal sitting en banc from the decision
rendered in such hearing shall be conducted in the manner and subject to
the requirements prescribed by the tax appeals tribunal pursuant to
sections one hundred sixty-eight through one hundred seventy-two of the
charter of the preceding municipality as it existed January first, nine-
teen hundred ninety-four. After such hearing the tax appeals tribunal
shall give notice of its decision to the person against whom the tax is
assessed and to the commissioner of finance. A decision of the tax
appeals tribunal sitting en banc shall be reviewable for error, illegal-
ity, unconstitutionality or any other reason whatsoever by a proceeding
A. 10030 795
under article seventy-eight of the civil practice law and rules if
instituted by the person against whom the tax was assessed within four
months after the giving of the notice of such tax appeals tribunal deci-
sion. A proceeding under such article of such law and rules shall not be
instituted by a taxpayer unless (a) the amount of any tax sought to be
reviewed with penalties and interest thereon, if any, shall first be
deposited with the commissioner of finance and there shall be filed with
such commissioner an undertaking, issued by a surety company authorized
to transact business in this state and approved by the superintendent of
insurance of this state as to solvency and responsibility, in such
amount and with such sureties as a justice of the supreme court shall
approve, to the effect that if such proceeding be dismissed or the tax
confirmed, the taxpayer will pay all costs and charges which may accrue
in the prosecution of the proceeding, or (b) at the option of the
taxpayer such undertaking filed with the commissioner of finance may be
in a sum sufficient to cover the taxes, penalties and interest thereon
stated in such decision, plus the costs and charges which may accrue
against it in the prosecution of the proceeding, in which event the
taxpayer shall not be required to deposit such taxes, penalties and
interest as a condition precedent to the application.
§ 11-1107 Assessment of tax where change or correction of sales and
compensating use tax liability involved. a. If a taxpayer fails to
comply with subdivision d of section 11-1104 of this chapter in not
reporting a change or correction of its sales and compensating use tax
liability or in not filing a copy of an amended return or report relat-
ing to its sales and compensating use tax liability, instead of the mode
and time of assessment provided for in section 11-1106 of this chapter,
the commissioner of finance may assess a deficiency based upon such
changed or corrected sales and compensating use tax liability, as same
relates to credits claimed under this chapter, by mailing to the taxpay-
er a notice of additional tax due specifying the amount of the deficien-
cy, and such deficiency, together with the interest and penalties stated
in such notice, shall be deemed assessed on the date such notice is
mailed unless within thirty days after the mailing of such notice a
report of the state change or correction or a copy of an amended return
or report, where such copy was required, is filed accompanied by a
statement showing wherein such state determination and such notice of
additional tax due are erroneous. Such notice shall not be considered as
a notice of determination for the purposes of section 11-1106 of this
chapter.
b. If a report filed pursuant to subdivision d of section 11-1104 of
this chapter concedes the accuracy of a state change or correction of
sales and compensating use tax liability, any deficiency in tax result-
ing therefor shall be deemed assessed on the date of filing such report.
§ 11-1108 Refunds. a. In the manner provided in this section the
commissioner of finance shall refund or credit, without interest, any
tax, penalty or interest erroneously, illegally or unconstitutionally
collected or paid, if application for such refund shall be made to the
commissioner of finance within three years from the time the return was
filed or two years from the time the tax was paid, whichever of such
periods expires later, or if no return was filed, within two years from
the time the tax was paid. If the claim is filed within the three-year
period, the amount of the credit or refund shall not exceed the portion
of the tax paid within the three years immediately preceding the filing
of the claim plus the period of any extension of time for filing the
return. Whenever a refund or credit is made or denied by the commission-
A. 10030 796
er of finance, he or she shall state his or her reason therefor and give
notice thereof to the taxpayer in writing. The commissioner of finance
may, in lieu of any refund required to be made, allow credit therefor on
payments due from the applicant.
b. Any determination of the commissioner of finance denying a refund
or credit pursuant to subdivision a of this section shall be final and
irrevocable unless the applicant for such refund or credit, within nine-
ty days from the mailing of notice of such determination, or, if the
commissioner of finance has established a conciliation procedure pursu-
ant to section 11-124 of this title and the applicant has requested a
conciliation conference in accordance therewith, within ninety days from
the mailing of a conciliation decision or the date of the commissioner's
confirmation of the discontinuance of the conciliation proceeding, both
(1) serves a petition upon the commissioner of finance and (2) files a
petition with the tax appeals tribunal for a hearing. Such petition for
a refund or credit, made as provided in this section, shall be deemed an
application for a revision of any tax, penalty or interest complained
of. Such hearing and any appeal to the tax appeals tribunal sitting en
banc from the decision rendered in such hearing shall be conducted in
the manner and subject to the requirements prescribed by the tax appeals
tribunal pursuant to sections one hundred sixty-eight through one
hundred seventy-two of the charter of the preceding municipality as it
existed January first, nineteen hundred ninety-four. After such hearing,
the tax appeals tribunal shall give notice of its decision to the appli-
cant and to the commissioner of finance. The applicant shall be entitled
to institute a proceeding under article seventy-eight of the civil prac-
tice law and rules to review a decision of the tax appeals tribunal
sitting en banc if application to the supreme court be made therefor
within four months after the giving of notice of such decision, and
provided, in the case of an application by a taxpayer, a final determi-
nation of tax due was not previously made.
c. If a taxpayer is required by subdivision d of section 11-1104 of
this chapter to file a report or amended return in respect of a change
or correction of its sales and compensating use tax liability, claim for
credit or refund of any resulting overpayment of tax shall be filed by
the taxpayer within one year from the time such report or amended return
was required to be filed with the commissioner of finance. This subdivi-
sion shall not affect the time within which or the amount for which a
claim for credit or refund may be filed apart from this subdivision.
d. A person shall not be entitled to a revision, refund or credit
under this section of a tax, interest or penalty which had been deter-
mined to be due pursuant to the provisions of section 11-1106 or 11-1107
of this chapter where he or she has had a hearing or an opportunity for
a hearing, as provided in such sections, or has failed to avail himself
or herself of the remedies therein provided. No refund or credit shall
be made of a tax, interest or penalty paid after a determination by the
commissioner of finance made pursuant to section 11-1106 or 11-1107 of
this chapter unless it be found that such determination was erroneous,
illegal or unconstitutional or otherwise improper, by the tax appeals
tribunal after a hearing or of the commissioner of finance's own motion
or, if such tax appeals tribunal affirms in whole or in part the deter-
mination of the commissioner of finance, in a proceeding under article
seventy-eight of the civil practice law and rules pursuant to the
provisions of said section, in which event refund or credit without
interest shall be made of the tax, interest or penalty found to have
been overpaid.
A. 10030 797
§ 11-1109 Reserves. In cases where the taxpayer has applied for a
refund and has instituted a proceeding under article seventy-eight of
the civil practice law and rules to review a determination adverse to
him or her on his or her application for refund, the comptroller shall
set up appropriate reserves to meet any decision adverse to the city.
§ 11-1110 Remedies exclusive. The remedies provided by this chapter
shall be the exclusive remedies available to any person for the review
of tax liability imposed by this chapter; and no determination or
proposed determination of tax or determination on any application for
refund by the commissioner of finance, nor any decision by the tax
appeals tribunal or any of its administrative law judges, shall be
enjoined or reviewed by an action for declaratory judgment, an action
for money had and received or by any action or proceeding other than, in
the case of a decision by the tax appeals tribunal sitting en banc, a
proceeding under article seventy-eight of the civil practice law and
rules; provided, however, that a taxpayer may proceed by a declaratory
judgment if he or she institutes suit within thirty days after a defi-
ciency assessment is made and pays the amount of the deficiency assess-
ment to the commissioner of finance prior to the institution of such
suit and posts a bond for costs as provided in section 11-1106 of this
chapter.
§ 11-1111 Proceedings to recover tax. a. Whenever any person shall
fail to pay any tax or penalty or interest imposed by this chapter as
provided in this section, the corporation counsel shall, upon the
request of the commissioner of finance, bring or cause to be brought an
action to enforce payment of the same against the person liable for the
same on behalf of the city of Staten Island in any court of the state of
New York or of any other state or of the United States. If, however,
such commissioner in his or her discretion believes that a taxpayer
subject to the provisions of this chapter is about to cease business,
leave the state or remove or dissipate the assets out of which tax or
penalties might be satisfied and that any such tax or penalty will not
be paid when due, he or she may declare such tax or penalty to be imme-
diately due and payable and may issue a warrant immediately.
b. As a further additional or alternate remedy, the commissioner of
finance may issue a warrant, directed to the city sheriff, commanding
him or her to levy upon and sell the real and personal property of such
person which may be found within the city, for the payment of the amount
thereof, with any penalties and the cost of executing the warrant and to
return such warrant to such commissioner and to pay to him or her the
money collected by virtue thereof within sixty days after the receipt of
such warrant. The city sheriff shall, within five days after the
receipt of the warrant, file with the county clerk a copy thereof and
thereupon such clerk shall enter in the judgment docket the name of the
person mentioned in the warrant and the amount of the tax and penalties
for which the warrant is issued and the date when such copy is filed.
Thereupon the amount of such warrant so docketed shall have the full
force and effect of a judgment and shall become a lien upon the title to
and interest in real and personal property of the person against whom
the warrant is issued. The city sheriff shall then proceed upon the
warrant in the same manner and with like effect as that provided by law
in respect to executions against property upon judgments of a court of
record, and for services in executing the warrant he or she shall be
entitled to the same fees which he or she may collect in the same
manner. In the discretion of the commissioner of finance a warrant of
like terms, force and effect may be issued and directed to any officer
A. 10030 798
or employee of the department of finance and in the execution thereof
such officer or employee shall have all the power conferred by law upon
sheriffs, but he or she shall be entitled to no fee or compensation in
excess of the actual expenses paid in the performance of such duty. If
a warrant is returned not satisfied in full, the commissioner of finance
may from time to time issue new warrants and shall also have the same
remedies to enforce the amount due thereunder as if the city had recov-
ered judgment therefor and execution thereon had been returned unsatis-
fied.
c. Whenever there is made a sale, transfer or assignment in bulk of
any part or the whole of a stock of merchandising or of fixtures, or
merchandise and of fixtures pertaining to the conducting of the business
of the seller, transferor or assignor, otherwise than in the ordinary
course of trade and in the regular prosecution of said business, the
purchaser, transferee or assignee shall at least ten days before taking
possession of such merchandise, fixtures, or merchandise and fixtures,
or paying therefor, notify the commissioner of finance by registered
mail of the proposed sale and of the price, terms and conditions there-
of, whether or not the seller, transferor or assignor, has represented
to, or informed the purchaser, transferee or assignee that it owes any
tax pursuant to this chapter, whether or not the purchaser, transferee
or assignee has knowledge that such taxes are owing, and whether or not
any such taxes are in fact owing.
Whenever the purchaser, transferee or assignee shall fail to give the
notice to the commissioner of finance required by this subdivision, or
whenever such commissioner shall inform the purchaser, transferee or
assignee that a possible claim for such tax or taxes exists, any sums of
money, property or choses in action, or other consideration, which the
purchaser, transferee or assignee is required to transfer over to the
seller, transferor or assignor shall be subject to a first priority
right and lien for any such taxes theretofore or thereafter determined
to be due from the seller, transferor or assignor to the city, and the
purchaser, transferee or assignee is forbidden to transfer to the sell-
er, transferor or assignor any such sums of money, property or choses in
action to the extent of the amount of the city's claim. For failure to
comply with the provisions of this subdivision the purchaser, transferee
or assignee, in addition to being subject to the liabilities and reme-
dies imposed under the provisions of former article six of the uniform
commercial code shall be personally liable for the payment to the city
of any such taxes theretofore or thereafter determined to be due to the
city from the seller, transferor or assignor and such liability may be
assessed and enforced in the same manner as the liability for tax is
imposed under this chapter.
d. The commissioner of finance, if he or she finds that the interests
of the city will not thereby be jeopardized, and upon such conditions as
the commissioner of finance may require, may release any property from
the lien of any warrant or vacate such warrant for unpaid taxes, addi-
tions to tax, penalties and interest filed pursuant to subdivision b of
this section, and such release or vacating of the warrant may be
recorded in the office of any recording officer in which such warrant
has been filed. The clerk shall thereupon cancel and discharge as of the
original date of docketing the vacated warrant.
§ 11-1112 General powers of the commissioner of finance. In addition
to the powers granted to the commissioner of finance in this chapter, he
or she is hereby authorized and empowered:
A. 10030 799
1. To make, adopt and amend rules and regulations appropriate to the
carrying out of this chapter and the purposes thereof; and to prescribe
the form of blanks, reports and other records relating to the enforce-
ment and administration of this chapter;
2. To prescribe methods for determining the amount of "gross income"
and "gross operating income" received by a person subject to tax pursu-
ant to this chapter;
3. To request information from the tax commission of the state of New
York or treasury department of the United States relative to any person;
and to afford returns, reports and other information to such tax commis-
sion or such treasury department relative to any person, any other
provision in this chapter to the contrary notwithstanding;
4. To extend, for cause shown, the time for filing any return for a
period not exceeding thirty days; and to compromise disputed claims in
connection with the taxes imposed pursuant to this chapter;
5. To delegate his or her functions hereunder to a deputy commission-
er of finance or other employee or employees of the department of
finance of the city;
6. To assess, determine, revise and readjust the taxes imposed under
this chapter.
§ 11-1113 Administration of oaths and compelling testimony. a. The
commissioner of finance, his or her employees duly designated and
authorized by him or her, the tax appeals tribunal and any of its duly
designated and authorized employees shall have power to administer oaths
and take affidavits in relation to any matter or proceedings in the
exercise of their powers and duties under this chapter. Such commis-
sioner and the tax appeals tribunal shall have power to subpoena and
require the attendance of witnesses and the production of books, papers
and documents to secure information pertinent to the performance of the
duties of such commissioner or of the tax appeals tribunal hereunder and
of the enforcement of this chapter, and to examine them in relation
thereto, and to issue commissions for the examination of witnesses who
are out of the state or unable to attend before the commissioner or the
tax appeals tribunal or excused from attendance.
b. A justice of the supreme court either in court or at chambers shall
have power summarily to enforce by proper proceedings the attendance and
testimony of witnesses and the production and examination of books,
papers and documents called for by the subpoena of the commissioner of
finance or the tax appeals tribunal under this chapter.
c. Cross-reference; criminal penalties. For failure to obey subpoenas
or for testifying falsely, see section 11-4007 of this title; for
supplying false or fraudulent information, see section 11-4002 of this
title.
d. The officers who serve the summons or subpoena of the commissioner
of finance or the tax appeals tribunal and witnesses attending in
response thereto shall be entitled to the same fees as are allowed to
officers and witnesses in civil cases in courts of record, except as
herein otherwise provided. Such officers shall be the city sheriff, and
his or her duly appointed deputies or any officers or employees of the
department of finance or the tax appeals tribunal, designated to serve
such process.
§ 11-1114 Interest and penalties. (a) Interest on underpayments. If
any amount of tax is not paid on or before the last date prescribed for
payment, without regard to any extension of time granted for payment,
interest on such amount at the rate set by the commissioner of finance
pursuant to subdivision (g) of this section, or, if no rate is set, at
A. 10030 800
the rate of seven and one-half percent per annum, shall be paid for the
period from such last date to the date of payment. In computing the
amount of interest to be paid, such interest shall be compounded daily.
Interest under this subdivision shall not be paid if the amount thereof
is less than one dollar.
(b) (1) Failure to file return. (A) In case of failure to file a
return under this chapter on or before the prescribed date, determined
with regard to any extension of time for filing, unless it is shown that
such failure is due to reasonable cause and not due to willful neglect,
there shall be added to the amount required to be shown as tax on such
return five percent of the amount of such tax if the failure is for not
more than one month, with an additional five percent for each additional
month or fraction thereof during which such failure continues, not
exceeding twenty-five percent in the aggregate.
(B) In the case of a failure to file a return of tax within sixty days
of the date prescribed for filing of such return, determined with regard
to any extension of time for filing, unless it is shown that such fail-
ure is due to reasonable cause and not due to willful neglect, the addi-
tion to tax under subparagraph (A) of this paragraph shall not be less
than the lesser of one hundred dollars or one hundred percent of the
amount required to be shown as tax on such return.
(C) For purposes of this paragraph, the amount of tax required to be
shown on the return shall be reduced by the amount of any part of the
tax which is paid on or before the date prescribed for payment of the
tax and by the amount of any credit against the tax which may be claimed
upon the return.
(2) Failure to pay tax shown on return. In case of failure to pay the
amount shown as tax on a return required to be filed under this chapter
on or before the prescribed date, determined with regard to any exten-
sion of time for payment, unless it is shown that such failure is due to
reasonable cause and not due to willful neglect, there shall be added
to the amount shown as tax on such return one-half of one percent of the
amount of such tax if the failure is not for more than one month, with
an additional one-half of one percent for each additional month or frac-
tion thereof during which such failure continues, not exceeding twenty-
five percent in the aggregate. For the purpose of computing the addition
for any month the amount of tax shown on the return shall be reduced by
the amount of any part of the tax which is paid on or before the begin-
ning of such month and by the amount of any credit against the tax which
may be claimed upon the return. If the amount of tax required to be
shown on a return is less than the amount shown as tax on such return,
this paragraph shall be applied by substituting such lower amount.
(3) Failure to pay tax required to be shown on return. In case of
failure to pay any amount in respect of any tax required to be shown on
a return required to be filed under this chapter which is not so shown,
including a determination made pursuant to section 11-1106 of this chap-
ter, within ten days of the date of a notice and demand therefor, unless
it is shown that such failure is due to reasonable cause and not due to
willful neglect, there shall be added to the amount of tax stated in
such notice and demand one-half of one percent of such tax if the fail-
ure is not for more than one month, with an additional one-half of one
percent for each additional month or fraction thereof during which such
failure continues, not exceeding twenty-five percent in the aggregate.
For the purpose of computing the addition for any month, the amount of
tax stated in the notice and demand shall be reduced by the amount of
any part of the tax which is paid before the beginning of such month.
A. 10030 801
(4) Limitations on additions.
(A) With respect to any return, the amount of the addition under para-
graph one of this subdivision shall be reduced by the amount of the
addition under paragraph two of this subdivision for any month to which
an addition applies under both paragraphs one and two of this subdivi-
sion. In any case described in subparagraph (B) of paragraph one of
this subdivision, the amount of the addition under such paragraph one
shall not be reduced below the amount provided in such subparagraph.
(B) With respect to any return, the maximum amount of the addition
permitted under paragraph three of this subdivision shall be reduced by
the amount of the addition under paragraph one of this subdivision,
determined without regard to subparagraph (B) of such paragraph one
which is attributable to the tax for which the notice and demand is made
and which is not paid within ten days of such notice and demand.
(c) Underpayment due to negligence. (1) If any part of an underpayment
of tax is due to negligence or intentional disregard of this chapter or
any rules or regulations hereunder, but without intent to defraud, there
shall be added to the tax a penalty equal to five percent of the under-
payment.
(2) There shall be added to the tax, in addition to the amount deter-
mined under paragraph one of this subdivision, an amount equal to fifty
percent of the interest payable under subdivision (a) of this section
with respect to the portion of the underpayment described in such para-
graph one which is attributable to the negligence or intentional disre-
gard referred to in such paragraph one, for the period beginning on the
last date prescribed by law for payment of such underpayment, determined
without regard to any extension, and ending on the date of the assess-
ment of the tax, or, if earlier, the date of the payment of the tax.
(3) If any payment is shown on a return made by a payor with respect
to dividends, patronage dividends and interest under subsection (a) of
section six thousand forty-two, subsection (a) of section six thousand
forty-four or subsection (a) of section six thousand forty-nine of the
internal revenue code of nineteen hundred fifty-four, respectively, and
the payee fails to include any portion of such payment in gross income
or gross operating income, when required under this chapter to be so
included, any portion of an underpayment attributable to such failure
shall be treated, for purposes of this subdivision, as due to negligence
in the absence of clear and convincing evidence to the contrary. If any
penalty is imposed under this subdivision by reason of this paragraph,
the amount of the penalty imposed by paragraph one of this subdivision
shall be five percent of the portion of the underpayment which is
attributable to the failure described in this paragraph.
(d) Underpayment due to fraud. (1) If any part of an underpayment of
tax is due to fraud, there shall be added to the tax a penalty equal to
two times of the underpayment.
(2) The penalty under this subdivision shall be in lieu of any other
addition to tax imposed by subdivision (b) or (c) of this section.
(e) Additional penalty. Any person who, with fraudulent intent, shall
fail to pay any tax imposed by this chapter, or to make, render, sign or
certify any return, or to supply any information within the time
required by or under this chapter, shall be liable for a penalty of not
more than one thousand dollars, in addition to any other amounts
required under this chapter to be imposed, assessed and collected by the
commissioner of finance. The commissioner of finance shall have the
power, in his or her discretion, to waive, reduce or compromise any
penalty under this subdivision.
A. 10030 802
(f) The interest and penalties imposed by this section shall be paid
and disposed of in the same manner as other revenues from this chapter.
Unpaid interest and penalties may be enforced in the same manner as the
tax imposed by this chapter.
(g) (1) Authority to set interest rates. The commissioner of finance
shall set the rate of interest to be paid pursuant to subdivision (a) of
this section, but if no such rate of interest is set, such rate shall be
deemed to be set at seven and one-half percent per annum. Such rate
shall be the rate prescribed in paragraph two of this subdivision but
shall not be less than seven and one-half percent per annum. Any such
rate set by the commissioner of finance shall apply to taxes, or any
portion thereof, which remain or become due on or after the date on
which such rate becomes effective and shall apply only with respect to
interest computed or computable for periods or portions of periods
occurring in the period in which such rate is in effect.
(2) General rule. The rate of interest set under this subdivision
shall be the sum of (i) the federal short-term rate as provided under
paragraph three of this subdivision, plus (ii) seven percentage points.
(3) Federal short-term rate. For purposes of this subdivision:
(A) The federal short-term rate for any month shall be the federal
short-term rate determined by the United States secretary of the treas-
ury during such month in accordance with subsection (d) of section
twelve hundred seventy-four of the internal revenue code for use in
connection with section six thousand six hundred twenty-one of the
internal revenue code. Any such rate shall be rounded to the nearest
full percent, or, if a multiple of one-half of one percent, such rate
shall be increased to the next highest full percent.
(B) Period during which rate applies.
(i) In general. Except as provided in clause (ii) of this subpara-
graph, the federal short-term rate for the first month in each calendar
quarter shall apply during the first calendar quarter beginning after
such month.
(ii) Special rule for the month of September, nineteen hundred eight-
y-nine. The federal short-term rate for the month of April, nineteen
hundred eighty-nine shall apply with respect to setting the rate of
interest for the month of September, nineteen hundred eighty-nine.
(4) Publication of interest rate. The commissioner of finance shall
cause to be published in the City Record, and give other appropriate
general notice of, the interest rate to be set under this subdivision no
later than twenty days preceding the first day of the calendar quarter
during which such interest rate applies. The setting and publication of
such interest rate shall not be included within paragraph (a) of subdi-
vision five of section one thousand forty-one of the city charter of the
preceding municipality as it existed January first, nineteen hundred
ninety-four relating to the definition of a rule.
(h) Miscellaneous. (1) The certificate of the commissioner of finance
to the effect that a tax has not been paid, that a return has not been
filed, or that information has not been supplied pursuant to the
provisions of this chapter shall be prima facie evidence thereof.
(2) Cross-reference: For criminal penalties, see chapter forty of this
title.
(i) Substantial understatement of liability. If there is a substantial
understatement of tax for any taxable period, there shall be added to
the tax an amount equal to ten percent of the amount of any underpayment
attributable to such understatement. For purposes of this subdivision,
there is a substantial understatement of tax for any taxable period if
A. 10030 803
the amount of the understatement for the taxable period exceeds the
greater of ten percent of the tax required to be shown on the return for
the taxable period or five thousand dollars. For purposes of this subdi-
vision, the term "understatement" means the excess of the amount of the
tax required to be shown on the return for the taxable period, over the
amount of the tax imposed which is shown on the return, reduced by any
rebate. The amount of such understatement shall be reduced by that
portion of the understatement which is attributable to the tax treatment
of any item by the taxpayer if there is or was substantial authority for
such treatment, or any item with respect to which the relevant facts
affecting the item's tax treatment are adequately disclosed in the
return or in a statement attached to the return. The commissioner of
finance may waive all or any part of the addition to tax provided by
this subdivision on a showing by the taxpayer that there was reasonable
cause for the understatement, or part thereof, and that the taxpayer
acted in good faith.
(j) Aiding or assisting in the giving of fraudulent returns, reports,
statements or other documents. (1) Any person who, with the intent that
tax be evaded, shall, for a fee or other compensation or as an incident
to the performance of other services for which such person receives
compensation, aid or assist in, or procure, counsel, or advise the prep-
aration or presentation under, or in connection with any matter arising
under this title of any return, report, statement or other document
which is fraudulent or false as to any material matter, or supply any
false or fraudulent information, whether or not such falsity or fraud is
with the knowledge or consent of the person authorized or required to
present such return, report, statement or other document shall pay a
penalty not exceeding ten thousand dollars.
(2) For purposes of paragraph one of this subdivision, the term
"procures" includes ordering, or otherwise causing, a subordinate to do
an act, and knowing of, and not attempting to prevent, participation by
a subordinate in an act. The term "subordinate" means any other person,
whether or not a director, officer, employee, or agent of the taxpayer
involved, over whose activities the person has direction, supervision,
or control.
(3) For purposes of paragraph one of this subdivision, a person
furnishing typing, reproducing, or other mechanical assistance with
respect to a document shall not be treated as having aided or assisted
in the preparation of such document by reason of such assistance.
(4) The penalty imposed by this subdivision shall be in addition to
any other penalty provided by law.
(k) Failure to include on return information relating to issuer's
allocation percentage. Where a return is filed but does not contain (1)
the information necessary to compute the taxpayer's issuer's allocation
percentage, as defined in subparagraph one of paragraph (b) of subdivi-
sion three of section 11-604 of this title, where the same is called for
on the return, or, (2) the taxpayer's issuer's allocation percentage,
where the same is called for on the return but where all of the informa-
tion necessary for the computation of such percentage is not called for
on the return, then unless it is shown that such failure is due to
reasonable cause and not due to willful neglect there shall be added to
the tax a penalty of five hundred dollars.
(l) False or fraudulent document penalty. Any taxpayer that submits a
false or fraudulent document to the department shall be subject to a
penalty of one hundred dollars per document submitted, or five hundred
A. 10030 804
dollars per tax return submitted. Such penalty shall be in addition to
any other penalty or addition provided by law.
§ 11-1115 Notices and limitations of time. a. Any notice authorized
or required under the provisions of this chapter may be given by mailing
the same to the person for whom it is intended in a postpaid envelope
addressed to such person at the address given in the last return filed
by such person pursuant to the provisions of this chapter or in any
application made by him or her, or, if no return has been filed or
application made, then to such address as may be obtainable. The mail-
ing of such notice shall be presumptive evidence of the receipt of the
same by the person to whom addressed. Any period of time which is
determined according to the provisions of this chapter by the giving of
notice shall commence to run from the date of mailing of such notice.
b. The provisions of the civil practice law and rules or any other law
relative to limitations of time for the enforcement of a civil remedy
shall not apply to any proceeding or action by the city taken to levy,
appraise, assess, determine or enforce the collection of any tax or
penalty provided by this chapter. However, except in the case of a
wilfully false or fraudulent return with intent to evade the tax, no
assessment of additional tax imposed under a local law for the preceding
municipality enacted subsequent to July first, nineteen hundred thirty-
eight, shall be made after the expiration of more than three years from
the date of the filing of a return, provided, however, that where no
return has been filed, or where the taxpayer fails to file a report or
return in respect of a change or correction in the amount of sales and
compensating use tax liability as provided by law, the tax may be
assessed at any time. Where the taxpayer files a report or return in
respect of a change or correction in sales and compensating use tax
liability, as required by subdivision d of section 11-1104 of this chap-
ter, an assessment may be made at any time within two years after such
report or return was filed, provided, however, that this sentence shall
not affect the time within which an assessment may otherwise be made.
c. Where, before the expiration of the period prescribed herein for
the assessment of an additional tax, a taxpayer has consented in writing
that such period be extended, the amount of such additional tax due may
be determined at any time within such extended period. The period so
extended may be further extended by subsequent consents in writing made
before the expiration of the extended period.
d. If any return, claim, statement, notice, application, or other
document required to be filed, or any payment required to be made, with-
in a prescribed period or on or before a prescribed date under authority
of any provision of this chapter is, after such period or such date,
delivered by United States mail to the commissioner of finance, the tax
appeals tribunal, bureau, office, officer or person with which or with
whom such document is required to be filed, or to which or to whom such
payment is required to be made, the date of the United States postmark
stamped on the envelope shall be deemed to be the date of delivery. This
subdivision shall apply only if the postmark date falls within the
prescribed period or on or before the prescribed date for the filing of
such document, or for making the payment, including any extension grant-
ed for such filing or payment, and only if such document or payment was
deposited in the mail, postage prepaid, properly addressed to the
commissioner of finance, the tax appeals tribunal, bureau, office, offi-
cer or person with which or with whom the document is required to be
filed or to which or to whom such payment is required to be made. If any
document is sent by United States registered mail, such registration
A. 10030 805
shall be prima facie evidence that such document was delivered to the
commissioner of finance, the tax appeals tribunal, bureau, office, offi-
cer or person to which or to whom addressed, and the date of registra-
tion shall be deemed the postmark date. The commissioner of finance or,
where relevant, the tax appeals tribunal is authorized to provide by
regulation the extent to which the provisions such with respect to prima
facie evidence of delivery and the postmark date shall apply to certi-
fied mail. Except as provided in subdivision f of this section, this
subdivision shall apply in the case of postmarks not made by the United
States postal service only if and to the extent provided by regulation
of the commissioner of finance or where relevant, the tax appeals tribu-
nal.
e. When the last day prescribed under authority of this chapter,
including any extension of time, for performing any act falls on a
Saturday, Sunday or legal holiday in the state, the performance of such
act shall be considered timely if it is performed on the next succeeding
day which is not a Saturday, Sunday or legal holiday.
f. (1) Any reference in subdivision d of this section to the United
States mail shall be treated as including a reference to any delivery
service designated by the secretary of the treasury of the United States
pursuant to section seventy-five hundred two of the internal revenue
code and any reference in subdivision d of this section to a United
States postmark shall be treated as including a reference to any date
recorded or marked in the manner described in section seventy-five
hundred two of the internal revenue code by a designated delivery
service. If the commissioner of finance finds that any delivery service
designated by such secretary is inadequate for the needs of the city,
the commissioner of finance may withdraw such designation for purposes
of this title. The commissioner of finance may also designate additional
delivery services meeting the criteria of section seventy-five hundred
two of the internal revenue code for purposes of this title, or may
withdraw any such designation if the commissioner of finance finds that
a delivery service so designated is inadequate for the needs of the
city. Any reference in subdivision d of this section to the United
States mail shall be treated as including a reference to any delivery
service designated by the commissioner of finance and any reference in
subdivision d of this section to a United States postmark shall be
treated as including a reference to any date recorded or marked in the
manner described in section seventy-five hundred two of the internal
revenue code by a delivery service designated by the commissioner of
finance; provided, however, any withdrawal of designation or additional
designation by the commissioner of finance shall not be effective for
purposes of service upon the tax appeals tribunal, unless and until such
withdrawal of designation or additional designation is ratified by the
president of the tax appeals tribunal.
(2) Any equivalent of registered or certified mail designated by the
United States secretary of the treasury, or as may be designated by the
commissioner of finance pursuant to the same criteria used by such
secretary for such designations pursuant to section seventy-five hundred
two of the internal revenue code, shall be included within the meaning
of registered or certified mail as used in subdivision d of this
section. If the commissioner of finance finds that any equivalent of
registered or certified mail designated by such secretary or the commis-
sioner of finance is inadequate for the needs of the city, the commis-
sioner of finance may withdraw such designation for purposes of this
title. Notwithstanding the foregoing, any withdrawal of designation or
A. 10030 806
additional designation by the commissioner of finance shall not be
effective for purposes of service upon the tax appeals tribunal, unless
and until such withdrawal of designation or additional designation is
ratified by the president of the tax appeals tribunal.
§ 11-1116 Returns to be secret. a. Except in accordance with proper
judicial order or as otherwise provided by law, it shall be unlawful for
the commissioner of finance, the tax appeals tribunal, or any officer or
employee of the department of finance or the tax appeals tribunal to
divulge or make known in any manner, the receipts or any other informa-
tion relating to the business of a taxpayer contained in any return
required under this chapter. The officers charged with the custody of
such returns shall not be required to produce any of them or evidence of
anything contained in them in any action or proceeding in any court,
except on behalf of the city or the commissioner of finance, or on
behalf of any party to any action or proceeding under the provisions of
this chapter when the returns or facts shown thereby are directly
involved in such action or proceeding, in either of which events, the
court may require the production of, and may admit in evidence, so much
of said returns or of the facts shown thereby, as are pertinent to the
action or proceeding and no more. Nothing in this subdivision shall be
construed to prohibit the delivery to a taxpayer or his or her duly
authorized representative of a certified copy of any return filed in
connection with his or her tax, nor to prohibit the publication of
statistics so classified as to prevent the identification of particular
returns and the items thereof, or the inspection by the corporation
counsel of the city or other legal representatives of such city of the
return of any taxpayer who shall bring action or proceeding to set aside
or review the tax based thereon, or against whom an action or proceeding
has been instituted or is contemplated for the collection of a tax,
penalty or interest. Returns shall be preserved for three years and
thereafter until the commissioner of finance permits them to be
destroyed.
b. (1) Any officer or employee of the city who willfully violates the
provisions of subdivision a of this section shall be dismissed from
office and be incapable of holding any public office in this city for a
period of five years thereafter.
(2) Cross-reference: For criminal penalties, see chapter forty of this
title.
c. This section shall be deemed a state statute for purposes of para-
graph (a) of subdivision two of section eighty-seven of the public offi-
cers law.
d. Notwithstanding anything in subdivision a of this section to the
contrary, if a taxpayer has petitioned the tax appeals tribunal for
administrative review as provided in section one hundred seventy of the
charter of the preceding municipality as it existed January first, nine-
teen hundred ninety-four, the commissioner of finance shall be author-
ized to present to the tribunal any report or return of such taxpayer,
or any information contained therein or relating thereto, which may be
material or relevant to the proceeding before the tribunal. The tax
appeals tribunal shall be authorized to publish a copy or a summary of
any decision rendered pursuant to section one hundred seventy-one of the
charter of the preceding municipality as it existed January first, nine-
teen hundred ninety-four.
§ 11-1117 Construction and enforcement. This chapter shall be
construed and enforced in conformity with chapter ninety-three of the
A. 10030 807
laws of nineteen hundred sixty-five, as amended, pursuant to which it is
enacted.
§ 11-1118 Disposition of revenues. All revenues resulting from the
imposition of the tax under this chapter shall be paid into the treasury
of the city and shall be credited to and deposited in the general fund
of the city, but no part of such revenues may be expended unless appro-
priated in the annual budget of the city.
§ 11-1119 Determinations of place of primary use of wireless telecom-
munications services. a. A home service provider shall be responsible
for obtaining and maintaining the customer's place of primary use as
defined in subdivision twenty of section 11-1101 of this chapter. Except
as provided in subdivision b of this section, if the home service
provider's reliance on the information provided by its customer is in
good faith: (1) the home service provider can rely on the applicable
residential or business street address supplied by the home service
provider's customer; and (2) the home service provider shall not be held
liable for any additional taxes under this chapter based on a different
determination of the place of primary use.
b. The commissioner of finance, or the commissioner of taxation and
finance of the state of New York on behalf of the commissioner of
finance, may determine that the address used by a home service provider
for purposes of this chapter does not meet the definition of place of
primary use as defined in subdivision twenty of section 11-1101 of this
chapter and may give binding notice to the home service provider to
change the place of primary use on a prospective basis from the date of
notice of determination if:
(1) where the determination is made by the commissioner of finance,
such commissioner obtains the consent of all affected taxing jurisdic-
tions within this state before giving such notice of determination; and
(2) before the commissioner of finance or the commissioner of taxation
and finance of the state of New York gives such notice of determination,
the customer is given an opportunity to demonstrate, in accordance with
applicable procedures established by the commissioner of finance making
the determination, that that address is the customer's place of primary
use.
c. Except as provided in subdivision b of this section, a home service
provider may treat the address used by the home service provider for
purposes of this chapter for the last taxable period beginning before
August first, two thousand two, for any customer under a service
contract or agreement in effect on July twenty-eighth, two thousand two
as that customer's place of primary use for the remaining term of such
service contract or agreement, excluding any extension or renewal of
such service contract or agreement.
§ 11-1120 Assignment of place of primary use of telecommunications
services to the city. a. If an electronic database meeting the require-
ments of subsection a of section one hundred nineteen of title four of
the United States Code is provided by the state of New York, or by a
designated database provider as defined in subsection three of section
one hundred twenty-four of such title, and the requirements of
subsection b of such section one hundred nineteen are met, a home
service provider shall use that database to determine whether the
customer's place of primary use is within the territorial limits of the
city and shall reflect changes to such database in accordance with
subsection c of such section one hundred nineteen.
b. A home service provider using the data contained in an electronic
database described in subdivision a of this section shall be held harm-
A. 10030 808
less from any tax liability that otherwise would be due under this chap-
ter solely as a result of any error or omission in such database
provided the home service provider has properly reflected changes to
such database in accordance with subsection c of section one hundred
nineteen of title four of the United States Code.
c. (1) If no electronic database is provided as described in subdivi-
sion a of this section, a home service provider shall be held harmless
from any tax liability under this chapter that otherwise would be due
solely as a result of an assignment of a street address to an incorrect
taxing jurisdiction if, subject to subdivision d of this section, the
home service provider employs an enhanced zip code to assign each street
address to a specific taxing jurisdiction for each level of taxing
jurisdiction and exercises due diligence at each level of taxing juris-
diction to ensure that each such street address is assigned to the
correct taxing jurisdiction. If an enhanced zip code overlaps boundaries
of taxing jurisdictions of the same level, the home service provider
must designate one specific jurisdiction within such enhanced zip code
for use in taxing the activity for such enhanced zip code for each level
of taxing jurisdiction. Any enhanced zip code assignment changed in
accordance with subdivision d of this section is deemed to be in compli-
ance with this subdivision. For purposes of this subdivision, there is a
rebuttable presumption that a home service provider has exercised due
diligence if such home service provider demonstrates that it has: (i)
expended reasonable resources to implement and maintain an appropriately
detailed electronic database of street address assignments to taxing
jurisdictions; (ii) implemented and maintained reasonable internal
controls to promptly correct misassignments of street addresses to
taxing jurisdictions; and (iii) used all reasonably obtainable and
usable data pertaining to municipal annexations, incorporations, reor-
ganizations and any other changes in jurisdictional boundaries that
materially affect the accuracy of such database.
(2) Paragraph one of this subdivision applies to a home service
provider that is in compliance with the requirements of such paragraph
until the later of: (i) eighteen months after the nationwide standard
numeric code described in subsection (a) of section one hundred nineteen
of title four of the United States Code has been approved by the feder-
ation of tax administrators and the multistate tax commission; or (ii)
six months after the state of New York or a designated database provider
provides a database as prescribed in subdivision a of this section.
d. The commissioner of finance, or the commissioner of taxation and
finance of the state of New York on behalf of the commissioner of
finance, may determine that the assignment of a street address to a
taxing jurisdiction by a home service provider under subdivision c of
this section does not reflect the correct taxing jurisdiction and give
binding notice to the home service provider to change the assignment on
a prospective basis from the date of notice of determination if: (1)
where the determination is made by the commissioner of finance, such
commissioner obtains the consent of all affected taxing jurisdictions
within this state before giving such notice of determination; and (2)
the home service provider is given an opportunity to demonstrate in
accordance with applicable procedures established by the commissioner of
finance making the determination that the assignment reflects the
correct taxing jurisdiction.
A. 10030 809
CHAPTER 12
HORSE RACE ADMISSIONS TAX
§ 11-1201 Definitions. When used in this chapter the following terms
shall mean or include:
1. "Racing corporation or association." A racing corporation or
association or other person owning or operating race meeting grounds or
enclosures located wholly or partly within the city of Staten Island,
and/or a racing corporation or association or other person conducting
race meetings at such grounds or enclosures.
2. "Person." Includes an individual, partnership, society, associ-
ation, joint-stock company, corporation, estate, receiver, trustee,
assignee, referee, or any other person acting in a fiduciary or repre-
sentative capacity, whether appointed by a court or otherwise, and any
combination of individuals.
3. "Return." Includes any return filed or required to be filed as
herein provided.
4. "Comptroller." The comptroller of the city.
5. "Commissioner of finance." The commissioner of finance of the
city.
6. "Admissions." The charge required to be paid by patrons for
admission to a running horse race meeting, including any charge required
to be paid by such patrons for admission to the clubhouse or other
special facilities within the race meeting grounds or enclosure at which
the running race meeting is conducted.
7. "Tax appeals tribunal." The tax appeals tribunal established by
section one hundred sixty-eight of the charter of the preceding munici-
pality as it existed January first, nineteen hundred ninety-four.
§ 11-1202 Imposition of tax. A tax is hereby imposed on all admis-
sions to running horse race meetings conducted at race meeting grounds
or enclosures located wholly or partly within the city of Staten Island
at the rate of three percent of the admission price. The racing associ-
ation or corporation conducting a running horse race meeting shall, in
addition to the admission price, collect such tax on all tickets sold or
otherwise disposed of to patrons for admission with the sole exception
of those issued free passes, cards or badges in accordance with the
specific authority of the laws of the state of New York. In case of
failure to collect such tax the tax shall be imposed on the racing
corporation or association conducting such meeting.
§ 11-1203 Payment of the tax. a. The tax imposed by this chapter
shall be paid by the racing corporation or association to the commis-
sioner of finance daily after each day of each race meeting, by deposit-
ing it to the account of the city in such bank or banks as may be desig-
nated by the city in accordance with the provisions of section four
hundred twenty-one of the charter of the preceding municipality as it
existed January first, nineteen hundred ninety-four or at such regular
intervals as the commissioner of finance may require.
b. The amount of the tax paid on admissions pursuant to this chapter
shall be the property of the city of Staten Island and shall be held by
the racing corporation or association as trustee for and on account of
the city of Staten Island and the racing corporation or association
shall be liable for the tax. Officers of the racing corporation or
association shall be personally liable for the tax collected or required
to be collected hereunder.
c. Every racing corporation or association conducting running horse
race meetings at race meeting grounds or enclosures located wholly or
partly within the city of Staten Island shall, on or before April first,
A. 10030 810
nineteen hundred fifty-two and annually thereafter, before the opening
of any race meeting in each year, execute and file with the commissioner
of finance a bond issued by a surety company authorized to transact
business in this state and approved by the superintendent of insurance
of this state as to solvency and responsibility in an amount sufficient
to secure the payment of the taxes and/or penalties and interest due or
which may become due pursuant to this section, to be fixed by the
commissioner of finance.
§ 11-1204 Returns. a. Every racing corporation or association
shall file with the commissioner of finance daily after each day of each
race meeting or at such regular intervals as the commissioner of finance
may require and upon such forms as shall be prescribed by the commis-
sioner of finance a return showing the taxes collected pursuant to this
chapter and the number of persons admitted to meetings conducted by the
racing corporation or association during the periods covered by the
return, together with any and all other information which the commis-
sioner of finance shall require to be included and reported in such
return. The commissioner of finance may require at any time supple-
mental or amended returns of such additional information or data as he
or she may specify.
b. Every return required pursuant to this section shall have annexed
thereto an affidavit of an officer of the racing corporation or associ-
ation to the effect that the statements contained therein are true.
§ 11-1205 Records to be kept and audits by commissioner of finance.
Every racing corporation or association shall keep such records as may
be prescribed by the commissioner of finance, of all admissions and
taxes collected pursuant to this chapter. Such records shall be avail-
able for inspection and examination at any time upon demand by the
commissioner of finance or the commissioner's duly authorized agents or
employees, and such records shall be preserved for a period of three
years, except that the commissioner of finance may consent to their
destruction within that period, and may require that they be kept longer
than three years.
§ 11-1206 Determination of tax. If a return required by this chapter
is not filed, or if a return when filed is incorrect or insufficient the
amount of tax due shall be determined by the commissioner of finance
from such information as may be obtainable and, if necessary, the tax
may be estimated on the basis of external indices, such as number of
race meetings held, admissions, paid attendance, and/or other factors.
Notice of such determination shall be given to the person liable for the
collection and/or payment of the tax. Such determination shall finally
and irrevocably fix the tax unless the person against whom it is
assessed, within ninety days after giving the notice of such determi-
nation, or, if the commissioner of finance has established a concil-
iation procedure pursuant to section 11-124 of this title and the
taxpayer has requested a conciliation conference in accordance there-
with, within ninety days from the mailing of a conciliation decision or
the date of the commissioner's confirmation of the discontinuance of the
conciliation proceeding, both (1) serves a petition upon the commission-
er of finance and (2) files a petition with the tax appeals tribunal for
a hearing, or unless the commissioner of finance of his or her own
motion shall redetermine the same. Such hearing and any appeal to the
tax appeals tribunal sitting en banc from the decision rendered in such
hearing shall be conducted in the manner and subject to the requirements
prescribed by the tax appeals tribunal pursuant to sections one hundred
sixty-eight through one hundred seventy-two of the charter of the
A. 10030 811
preceding municipality as it existed January first, nineteen hundred
ninety-four. After such hearing the tax appeals tribunal shall give
notice of its decision to the person liable for the tax and to the
commissioner of finance. A decision of the tax appeals tribunal sitting
en banc shall be reviewable for error, illegality or unconstitutionality
or any other reason whatsoever by a proceeding under article seventy-
eight of the civil practice law and rules if application therefor is
made to the supreme court by the person against whom the tax was
assessed within four months after the giving of the notice of such tax
appeals tribunal decision. A proceeding under article seventy-eight of
the civil practice law and rules shall not be instituted by a person
liable for the tax unless the amount of any tax sought to be reviewed
with interest and penalties thereon, if any, shall be first deposited
with the commissioner of finance and there shall be filed with the
commissioner of finance an undertaking, issued by a surety company
authorized to transact business in this state and approved by the super-
intendent of insurance of this state as to solvency and responsibility,
in such amount as a justice of the supreme court shall approve to the
effect that if such proceeding be dismissed or the tax confirmed, such
person will pay all costs and charges which may accrue in the prose-
cution of the proceeding, or at the option of such person such undertak-
ing filed with the commissioner of finance may be in a sum sufficient to
cover the taxes, penalties and interest thereon stated in such decision
plus the costs and charges which may accrue against it in the prose-
cution of the proceeding, in which event such person shall not be
required to deposit such taxes, penalties and interest as a condition
precedent to the application.
§ 11-1207 Refunds. a. In the manner provided in this section the
commissioner of finance shall refund or credit, without interest, any
tax, penalty or interest erroneously, illegally, or unconstitutionally
collected or paid if application to the commissioner of finance for such
refund shall be made within one year from the payment thereof. Whenever
a refund or credit is made or denied by the commissioner of finance, he
or she shall state his or her reason therefor and give notice thereof to
the applicant in writing. The commissioner of finance may, in lieu of
any refund required to be made, allow credit therefor on payments due
from the applicant.
b. Any determination of the commissioner of finance denying a refund
or credit pursuant to subdivision a of this section shall be final and
irrevocable unless the applicant for such refund or credit, within nine-
ty days from the mailing of notice of such determination, or, if the
commissioner of finance has established a conciliation procedure, pursu-
ant to section 11-124 of this title and the applicant has requested a
conciliation conference in accordance therewith, within ninety days of
the mailing of a conciliation decision or the date of the commissioner's
confirmation of the discontinuance of the conciliation proceeding, both
(1) serves a petition upon the commissioner of finance and (2) files a
petition with the tax appeals tribunal for a hearing. Such petition for
a refund or credit, made as provided under this section, shall be deemed
an application for a revision of any tax, penalty or interest complained
of. Such hearing and any appeal to the tax appeals tribunal sitting en
banc from the decision rendered in such hearing shall be conducted in
the manner and subject to the requirements prescribed by the tax appeals
tribunal pursuant to section one hundred sixty-eight through one hundred
seventy-two of the charter of the preceding municipality as it existed
January first, nineteen hundred ninety-four. After such hearing, the tax
A. 10030 812
appeals tribunal shall give notice of its decision to the applicant and
to the commissioner of finance. The applicant shall be entitled to
institute a proceeding pursuant to article seventy-eight of the civil
practice law and rules to review a decision of the tax appeals tribunal
sitting en banc, provided such proceeding is instituted within four
months after the giving of the notice of such decision, and provided, in
the case of an application by a person liable for the tax, that a final
determination of tax due was not previously made. Such a proceeding
shall not be instituted by a person liable for the tax unless an under-
taking is filed with the commissioner of finance in such amount and with
such sureties as a justice of the supreme court shall approve to the
effect that if such proceeding be dismissed or the tax confirmed, such
person will pay all costs and charges which may accrue in the prose-
cution of such proceeding.
c. A person shall not be entitled to a revision, refund or credit
under this section of a tax, interest or penalty which has been deter-
mined to be due pursuant to the provisions of section 11-1206 of this
chapter where such person has had a hearing or an opportunity for a
hearing, as provided in said section, or has failed to avail himself or
herself of the remedies therein provided. No refund or credit shall be
made of a tax, interest or penalty paid after a determination by the
commissioner of finance made pursuant to section 11-1206 of this chapter
unless it be found that such determination was erroneous, illegal or
unconstitutional or otherwise improper, by the tax appeals tribunal
after a hearing or of the commissioner's own motion, or, if such tax
appeals tribunal affirms in whole or in part the determination of the
commissioner of finance, in a proceeding under article seventy-eight of
the civil practice law and rules, pursuant to the provisions of said
section, in which event refund or credit without interest shall be made
of the tax, interest or penalty found to have been overpaid.
§ 11-1208 Reserves. In cases where a person has applied for a
refund and has instituted a proceeding under article seventy-eight of
the civil practice law and rules to review a determination adverse to
such person on his or her application for refund, the comptroller shall
set up appropriate reserves to meet any decision adverse to the city.
§ 11-1209 Remedies exclusive. The remedies provided by sections
11-1206 and 11-1207 of this chapter shall be exclusive remedies avail-
able to any person for the review of tax liability imposed by this chap-
ter, and no determination or proposed determination of tax or determi-
nation on any application for refund by the commissioner of finance, nor
any decision by the tax appeals tribunal or any of its administrative
law judges, shall be enjoined or reviewed by an action for declaratory
judgment, an action for money had and received or by any action or
proceeding other than, in the case of a decision by the tax appeals
tribunal sitting en banc, a proceeding in the nature of a certiorari
proceeding under article seventy-eight of the civil practice law and
rules; provided, however, that such person may proceed by declaratory
judgment if such person institutes suit within ninety days after a defi-
ciency assessment is made and pays the amount of the deficiency assess-
ment to the commissioner of finance prior to the institution of such
suit and posts a bond for costs as provided in section 11-1206 of this
chapter.
§ 11-1210 Proceedings to recover tax. a. Whenever any racing
corporation or association or any of its officers or any other person
shall fail to collect and pay over any tax or to pay any tax, penalty or
interest imposed by this chapter as therein provided, the corporation
A. 10030 813
counsel shall, upon the request of the commissioner of finance bring or
cause to be brought an action to enforce the payment of the same on
behalf of the city of Staten Island in any court of the state of New
York or of any other state or of the United States. If, however, the
commissioner of finance in his or her discretion believes that a person
subject to the provisions of this chapter is about to cease business,
leave the state or remove or dissipate the assets out of which the tax
or penalties might be satisfied, and that any such tax or penalty will
not be paid when due, the commissioner of finance may declare such tax
or penalty to be immediately due and payable and may issue a warrant
immediately.
b. As an additional or alternate remedy, the commissioner of finance
may issue a warrant, directed to the city sheriff commanding the sheriff
to levy upon and sell the real and personal property of the racing
corporation or association or its officers or any other person which may
be found within the city, for the payment of the amount thereof, with
any penalties and interest, and the cost of executing the warrant, and
to return such warrant to the commissioner of finance and to pay to the
commissioner of finance the money collected by virtue thereof within
sixty days after the receipt of such warrant. The city sheriff shall
within five days after the receipt of the warrant file with the county
clerk a copy thereof, and thereupon such clerk shall enter in the judg-
ment docket the name of the person mentioned in the warrant and the
amount of the tax, penalties and interest for which the warrant is
issued and the date when such copy is filed. Thereupon the amount of
such warrant so docketed shall become a lien upon the title to and
interest in real and personal property of the person against whom the
warrant is issued. The city sheriff shall then proceed upon the warrant
in the same manner, and with like effect, as that provided by law in
respect to executions issued against property upon judgments of a court
of record and for services in executing the warrants the city sheriff
shall be entitled to the same fees, which the city sheriff may collect
in the same manner. In the discretion of the commissioner of finance a
warrant of like terms, force and effect may be issued and directed to
any officer or employee of the department of finance, and in the
execution thereof such officer or employee shall have all the powers
conferred by law upon sheriffs, but shall be entitled to no fee or
compensation in excess of the actual expenses paid in the performance of
such duty. If a warrant is returned not satisfied in full, the commis-
sioner of finance may from time to time issue new warrants and shall
also have the same remedies to enforce the amount due thereunder as if
the city had recovered judgment therefor and execution thereon had been
returned unsatisfied.
c. Whenever a corporation or association shall make a sale, transfer
or assignment in bulk or any part or the whole of its race meeting
grounds or enclosures and the building and structures thereon, or its
lease, license or other agreement or right to possess or operate such
race meeting grounds or enclosures or of the equipment, machinery,
fixtures or supplies, or of the said race meeting grounds or enclosures
and the building and structures thereon, or lease, license or other
agreement or right to possess or operate such race meeting grounds or
enclosures, and the equipment, machinery, fixtures or supplies pertain-
ing to the conduct or the operation of the said race meeting grounds or
enclosures, otherwise than in the ordinary course of trade and in the
regular prosecution of said business, the purchaser, transferee or
assignee shall at least ten days before taking possession of such race
A. 10030 814
meeting grounds or enclosures and the building and structures thereon,
or lease, license or other agreement or right to possess or operate such
race meeting grounds or enclosures or the equipment, machinery, fixtures
or supplies, or of the said race meeting grounds or enclosures and the
building and structures thereon, or lease, license or other agreement or
right to possess or operate such race meeting grounds or enclosures, and
the equipment, machinery, fixtures or supplies or paying thereof, notify
the commissioner of finance by registered mail of the proposed sale and
of the price, terms and conditions thereof whether or not the seller,
transferor or assignor, has represented to, or informed the purchaser,
transferee or assignee that it owes any tax pursuant to this chapter and
whether or not the purchaser, transferee or assignee has knowledge that
such taxes are owing, and whether any such taxes are in fact owing.
Whenever the purchaser, transferee or assignee shall fail to give
notice to the commissioner of finance as required by the opening para-
graph of this subdivision, or whenever the commissioner of finance shall
inform the purchaser, transferee or assignee that a possible claim for
such tax or taxes exists, any sums of money, property or choses in
action, or other consideration, which the purchaser, transferee or
assignee is required to transfer over to the seller, transferor or
assignor shall be subject to a first priority right and lien for any
such taxes theretofore or thereafter determined to be due from the sell-
er, transferor or assignor to the city, and the purchaser, transferee or
assignee is forbidden to transfer to the seller, transferor or assignor
any such sums of money, property or choses in action to the extent of
the amount of the city's claim. For failure to comply with the
provisions of this subdivision, the purchaser, transferee or assignee,
in addition to being subject to the liabilities and remedies imposed
under the provisions of former article six of the uniform commercial
code, shall be personally liable for the payment to the city of any such
taxes theretofore or thereafter determined to be due to the city from
the seller, transferor or assignor, and such liability may be assessed
and enforced in the same manner as the liability for tax under this
chapter.
d. The commissioner of finance, if he or she finds that the interests
of the city will not thereby be jeopardized, and upon such conditions as
the commissioner of finance may require, may release any property from
the lien of any warrant or vacate such warrant for unpaid taxes, addi-
tions to tax, penalties and interest filed pursuant to subdivision b of
this section, and such release or vacating of the warrant may be
recorded in the office of any recording officer in which such warrant
has been filed. The clerk shall thereupon cancel and discharge as of the
original date of docketing the vacated warrant.
§ 11-1211 General powers of the commissioner of finance. In addition
to the powers granted to the commissioner of finance in this chapter,
such commissioner is hereby authorized and empowered:
1. To make, adopt and amend rules and regulations appropriate to the
carrying out of this chapter and the purposes thereof;
2. To extend, for cause shown, the time for filing any return for a
period not exceeding thirty days; and to compromise disputed claims in
connection with the taxes hereby imposed;
3. To request information from the racing commission and the tax
commission of the state of New York, or any other state or the treasury
department of the United States relative to any person; and to afford
information to such commission or such treasury department relative to
A. 10030 815
any person, any other provision of this chapter to the contrary notwith-
standing;
4. To delegate his or her functions under this section to a deputy
commissioner of finance or any employee or employees of the department
of finance;
5. To prescribe methods for determining the amount of the admissions
and for determining the tax;
6. To require racing corporations or associations to keep detailed
records of all race meetings and all attendance thereat, and to furnish
such information upon request to the commissioner of finance;
7. To require that the amount of the tax be printed, separate from
the price of admission, on tickets of admission.
§ 11-1212 Administration of oaths and compelling testimony. a. The
commissioner of finance, his or her employees or agents duly designated
and authorized by the commissioner of finance, the tax appeals tribunal
and any of its duly designated and authorized employees or agents shall
have power to administer oaths and take affidavits in relation to any
matter or proceeding in the exercise of their powers and duties under
this chapter. The commissioner of finance and the tax appeals tribunal
shall have power to subpoena and require the attendance of witnesses and
the production of books, papers and documents to secure information
pertinent to the performance of the duties of the commissioner or of the
tax appeals tribunal under this section and of the enforcement of this
chapter and to examine them in relation thereto, and to issue commis-
sions for the examination of witnesses who are out of the state or
unable to attend before the commissioner of finance or the tax appeals
tribunal or excused from attendance.
b. A justice of the supreme court either in court or at chambers shall
have power summarily to enforce by proper proceedings the attendance and
testimony of witnesses and the production and examination of books,
papers and documents called for by the subpoena of the commissioner of
finance or the tax appeals tribunal under this chapter.
c. Cross-reference; criminal penalties. For failure to obey subpoenas
or for testifying falsely, see section 11-4007 of this title; for
supplying false or fraudulent information, see section 11-4009 of this
title.
d. The officers who serve the summons or subpoena of the commissioner
of finance or the tax appeals tribunal and witnesses attending in
response thereto shall be entitled to the same fees as are allowed to
officers and witnesses in civil cases in courts of record, except as
herein otherwise provided. Such officers shall be the city sheriff and
his or her duly appointed deputies, or any officers or employees of the
department of finance or the tax appeals tribunal, designated to serve
such process.
§ 11-1213 Interest and penalties. (a) Interest on underpayments. If
any amount of tax is not paid over or paid on or before the last date
prescribed for payment, without regard to any extension of time granted
for payment, interest on such amount at the rate set by the commissioner
of finance pursuant to subdivision (g) of this section, or, if no rate
is set, at the rate of seven and one-half percent per annum, shall be
paid for the period from such last date to the date of payment. In
computing the amount of interest to be paid, such interest shall be
compounded daily. Interest under this subdivision shall not be paid if
the amount thereof is less than one dollar.
(b) (1) Failure to file return. (A) In case of failure to file a
return under this chapter on or before the prescribed date, determined
A. 10030 816
with regard to any extension of time for filing, unless it is shown that
such failure is due to reasonable cause and not due to willful neglect,
there shall be added to the amount required to be shown as tax on such
return five percent of the amount of such tax if the failure is for not
more than one month, with an additional five percent for each additional
month or fraction thereof during which such failure continues, not
exceeding twenty-five percent in the aggregate.
(B) In the case of a failure to file a return of tax within sixty days
of the date prescribed for filing of such return, determined with regard
to any extension of time for filing, unless it is shown that such fail-
ure is due to reasonable cause and not due to willful neglect, the addi-
tion to tax under subparagraph (A) of this paragraph shall not be less
than the lesser of one hundred dollars or one hundred percent of the
amount required to be shown as tax on such return.
(C) For purposes of this paragraph, the amount of tax required to be
shown on the return shall be reduced by the amount of any part of the
tax which is paid on or before the date prescribed for payment of the
tax and by the amount of any credit against the tax which may be claimed
upon the return.
(2) Failure to pay tax shown on return. In case of failure to pay the
amount shown as tax on a return required to be filed under this chapter
on or before the prescribed date, determined with regard to any exten-
sion of time for payment, unless it is shown that such failure is due to
reasonable cause and not due to willful neglect, there shall be added to
the amount shown as tax on such return one-half of one percent of the
amount of such tax if the failure is not for more than one month, with
an additional one-half of one percent for each additional month or frac-
tion thereof during which such failure continues, not exceeding twenty-
five percent in the aggregate. For the purpose of computing the addition
for any month the amount of tax shown on the return shall be reduced by
the amount of any part of the tax which is paid on or before the begin-
ning of such month and by the amount of any credit against the tax which
may be claimed upon the return. If the amount of tax required to be
shown on a return is less than the amount shown as tax on such return,
this paragraph shall be applied by substituting such lower amount.
(3) Failure to pay tax required to be shown on return. In case of
failure to pay any amount in respect of any tax required to be shown on
a return required to be filed under this chapter which is not so shown,
including a determination made pursuant to section 11-1206 of this chap-
ter, within ten days of the date of a notice and demand therefor, unless
it is shown that such failure is due to reasonable cause and not due to
willful neglect, there shall be added to the amount of tax stated in
such notice and demand one-half of one percent of such tax if the fail-
ure is not for more than one month, with an additional one-half of one
percent for each additional month or fraction thereof during which such
failure continues, not exceeding twenty-five percent in the aggregate.
For the purpose of computing the addition for any month, the amount of
tax stated in the notice and demand shall be reduced by the amount of
any part of the tax which is paid before the beginning of such month.
(4) Limitations on additions. (A) With respect to any return, the
amount of the addition under paragraph one of this subdivision shall be
reduced by the amount of the addition under paragraph two of this subdi-
vision for any month to which an addition applies under both paragraphs
one and two. In any case described in subparagraph (B) of paragraph one
of this subdivision, the amount of the addition under such paragraph one
shall not be reduced below the amount provided in such subparagraph.
A. 10030 817
(B) With respect to any return, the maximum amount of the addition
permitted under paragraph three of this subdivision shall be reduced by
the amount of the addition under paragraph one of this subdivision,
determined without regard to subparagraph (B) of such paragraph one,
which is attributable to the tax for which the notice and demand is made
and which is not paid within ten days of such notice and demand.
(c) Underpayment due to negligence. (1) If any part of an underpay-
ment of tax is due to negligence or intentional disregard of this chap-
ter or any rules or regulations hereunder, but without intent to
defraud, there shall be added to the tax a penalty equal to five percent
of the underpayment.
(2) There shall be added to the tax, in addition to the amount deter-
mined under paragraph one of this subdivision, an amount equal to fifty
percent of the interest payable under subdivision (a) of this section
with respect to the portion of the underpayment described in such para-
graph one which is attributable to the negligence or intentional disre-
gard referred to in such paragraph one, for the period beginning on the
last date prescribed by law for payment of such underpayment, determined
without regard to any extension, and ending on the date of the assess-
ment of the tax, or, if earlier, the date of the payment of the tax.
(d) Underpayment due to fraud. (1) If any part of an underpayment of
tax is due to fraud, there shall be added to the tax a penalty equal to
fifty percent of the underpayment.
(2) There shall be added to the tax, in addition to the penalty deter-
mined under paragraph one of this subdivision, an amount equal to fifty
percent of the interest payable under subdivision (a) of this section
with respect to the portion of the underpayment described in such para-
graph one which is attributable to fraud, for the period beginning on
the last day prescribed by law for payment of such underpayment, deter-
mined without regard to any extension, and ending on the date of the
assessment of the tax, or, if earlier, the date of the payment of the
tax.
(3) The penalty under this subdivision shall be in lieu of any other
addition to tax imposed by subdivision (b) or (c) of this section.
(e) Additional penalty. Any person who, with fraudulent intent, shall
fail to pay any tax imposed by this chapter, or to make, render, sign or
certify any return, or to supply any information within the time
required by or under this chapter, shall be liable for a penalty of not
more than one thousand dollars, in addition to any other amounts
required under this chapter to be imposed, assessed and collected by the
commissioner of finance. The commissioner of finance shall have the
power, in his or her discretion, to waive, reduce or compromise any
penalty under this subdivision.
(f) The interest and penalties imposed by this section shall be paid
and disposed of in the same manner as other revenues from this chapter.
Unpaid interest and penalties may be enforced in the same manner as the
tax imposed by this chapter.
(g)(1) Authority to set interest rates. The commissioner of finance
shall set the rate of interest to be paid pursuant to subdivision (a) of
this section, but if no such rate of interest is set, such rate shall be
deemed to be set at seven and one-half percent per annum. Such rate
shall be the rate prescribed in paragraph two of this subdivision but
shall not be less than seven and one-half percent per annum. Any such
rate set by the commissioner of finance shall apply to taxes, or any
portion thereof, which remain or become due on or after the date on
which such rate becomes effective and shall apply only with respect to
A. 10030 818
interest computed or computable for periods or portions of periods
occurring in the period in which such rate is in effect.
(2) General rule. The rate of interest set under this subdivision
shall be the sum of (i) the federal short-term rate as provided under
paragraph three of this subdivision, plus (ii) seven percentage points.
(3) Federal short-term rate. For purposes of this subdivision:
(A) The federal short-term rate for any month shall be the federal
short-term rate determined by the United States secretary of the treas-
ury during such month in accordance with subsection (d) of section
twelve hundred seventy-four of the internal revenue code for use in
connection with section six thousand six hundred twenty-one of the
internal revenue code. Any such rate shall be rounded to the nearest
full percent, or, if a multiple of one-half of one percent, such rate
shall be increased to the next highest full percent.
(B) Period during which rate applies.
(i) In general. Except as provided in clause (ii) of this subpara-
graph, the federal short-term rate for the first month in each calendar
quarter shall apply during the first calendar quarter beginning after
such month.
(ii) Special rule for the month of September, nineteen hundred eight-
y-nine. The federal short-term rate for the month of April, nineteen
hundred eighty-nine shall apply with respect to setting the rate of
interest for the month of September, nineteen hundred eighty-nine.
(4) Publication of interest rate. The commissioner of finance shall
cause to be published in the City Record, and give other appropriate
general notice of, the interest rate to be set under this subdivision no
later than twenty days preceding the first day of the calendar quarter
during which such interest rate applies. The setting and publication of
such interest rate shall not be included within paragraph (a) of subdi-
vision five of section one thousand forty-one of the city charter of the
preceding municipality as it existed January first, nineteen hundred
ninety-four relating to the definition of a rule.
(h) Miscellaneous. (1) Officers of a racing corporation or association
shall be personally liable for the tax collected or required to be
collected under this chapter, and subject to the penalties imposed by
this section.
(2) The certificate of the commissioner of finance to the effect that
a tax has not been paid, that a return or bond has not been filed, or
that information has not been supplied pursuant to the provisions of
this chapter, shall be presumptive evidence thereof.
(3) Cross-reference: For criminal penalties, see chapter forty of this
title.
§ 11-1214 Returns to be secret. a. Except in accordance with proper
judicial order, or as otherwise provided by law, it shall be unlawful
for the commissioner of finance or the tax appeals tribunal or any offi-
cer or employee of the department of finance to divulge or make known in
any manner any of the information relating to the business of any person
contained in any return required under this chapter. The officers
charged with the custody of such returns shall not be required to
produce any of them or evidence of anything contained in them in any
action or proceeding in any court, except on behalf of the commissioner
of finance in an action or proceeding under the provisions of this chap-
ter, or on behalf of any party to any action or proceeding under the
provisions of this chapter, when the returns or facts shown thereby are
directly involved in such action or proceeding, in either of which
events the courts may require the production of, and may admit in
A. 10030 819
evidence, so much of said returns or of the facts shown thereby, as are
pertinent to the action or proceeding and no more. The commissioner of
finance may, nevertheless, publish a copy or a summary of any determi-
nation or decision rendered after a formal hearing held pursuant to
section 11-1206 or 11-1207 of this chapter. Nothing in this section
shall be construed to prohibit the delivery to a person or such person's
duly authorized representative of a certified copy of any return filed
by such person nor to prohibit the publication of statistics so classi-
fied as to prevent the identification of particular returns and the
items thereof, or the inspection by the corporation counsel or other
legal representatives of the city, or by the district attorney of Rich-
mond county, of the return of any person who shall bring action to set
aside or review the tax based thereon, or against whom an action or
proceeding has been instituted for the collection of a tax or penalty.
Returns shall be preserved for three years and thereafter until the
commissioner of finance permits them to be destroyed.
b. (1) Any officer or employee of the city who willfully violates the
provisions of subdivision a of this section shall be dismissed from
office and be incapable of holding any public office in this city for a
period of five years thereafter.
(2) Cross-reference: For criminal penalties, see chapter forty of this
title.
c. This section shall be deemed a state statute for purposes of para-
graph (a) of subdivision two of section eighty-seven of the public offi-
cers law.
d. Notwithstanding anything in subdivision a of this section to the
contrary, if a taxpayer has petitioned the tax appeals tribunal for
administrative review as provided in section one hundred seventy of the
charter of the preceding municipality as it existed January first, nine-
teen hundred ninety-four, the commissioner of finance shall be author-
ized to present to the tribunal any report or return of such taxpayer,
or any information contained therein or relating thereto, which may be
material or relevant to the proceeding before the tribunal. The tax
appeals tribunal shall be authorized to publish a copy or a summary of
any decision rendered pursuant to section one hundred seventy-one of the
charter of the preceding municipality as it existed January first, nine-
teen hundred ninety-four.
§ 11-1215 Notices and limitations of time. a. Any notice author-
ized or required under the provisions of this chapter may be given by
mailing the same to the person for whom it is intended in a postpaid
envelope addressed to such person at the address given in the last
return filed by such person pursuant to the provisions of this chapter
or in any application made by such person or if no return has been filed
or application made, then to such address as may be obtainable. The
mailing of such notice shall be presumptive evidence of the receipt of
the same by the person to whom addressed. Any period of time which is
determined according to the provisions of this chapter by the giving of
notice shall commence to run from the date of mailing of such notice.
b. The provisions of the civil practice law and rules or any other
law relative to limitations of time for the enforcement of a civil reme-
dy shall not apply to any proceeding or action taken by the city to
levy, appraise, assess, determine or enforce the collection of any tax
or penalty provided by this chapter. However, except in the case of a
wilfully false or fraudulent return with intent to evade the tax, no
assessment of additional tax shall be made after the expiration of more
than three years from the date of the filing of a return, provided, that
A. 10030 820
where no return has been filed as provided by law the tax may be
assessed at any time.
c. Where, before the expiration of the period prescribed under this
section for the assessment of an additional tax, a person has consented
in writing that such period be extended, the amount of such additional
tax due may be determined at any time within such extended period. The
period so extended may be further extended by subsequent consents in
writing made before the expiration of the extended period.
d. If any return, claim, statement, notice, application, or other
document required to be filed, or any payment required to be made, with-
in a prescribed period or on or before a prescribed date under authority
of any provision of this chapter is, after such period or such date,
delivered by United States mail to the commissioner of finance, the tax
appeals tribunal, bureau, office, officer or person with which or with
whom such document is required to be filed, or to which or to whom such
payment is required to be made, the date of the United States postmark
stamped on the envelope shall be deemed to be the date of delivery. This
subdivision shall apply only if the postmark date falls within the
prescribed period or on or before the prescribed date for the filing of
such document, or for making the payment, including any extension grant-
ed for such filing or payment, and only if such document or payment was
deposited in the mail, postage prepaid, properly addressed to the
commissioner of finance, bureau, office, officer or person with which or
with whom the document is required to be filed or to which or to whom
such payment is required to be made. If any document is sent by United
States registered mail, such registration shall be prima facie evidence
that such document was delivered to the commissioner of finance, the tax
appeals tribunal, bureau, office, officer or person to which or to whom
addressed, and the date of registration shall be deemed the postmark
date. The commissioner of finance or, where relevant, the tax appeals
tribunal is authorized to provide by regulation the extent to which the
provisions of the preceding sentence with respect to prima facie
evidence of delivery and the postmark date shall apply to certified
mail. Except as provided in subdivision f of this section, this subdivi-
sion shall apply in the case of postmarks not made by the United States
postal service only if and to the extent provided by regulation of the
commissioner of finance or, where relevant, the tax appeals tribunal.
e. When the last day prescribed under authority of this chapter,
including any extension of time, for performing any act falls on a
Saturday, Sunday or legal holiday in the state, the performance of such
act shall be considered timely if it is performed on the next succeeding
day which is not a Saturday, Sunday or legal holiday.
f. (1) Any reference in subdivision d of this section to the United
States mail shall be treated as including a reference to any delivery
service designated by the secretary of the treasury of the United States
pursuant to section seventy-five hundred two of the internal revenue
code and any reference in subdivision d of this section to a United
States postmark shall be treated as including a reference to any date
recorded or marked in the manner described in section seventy-five
hundred two of the internal revenue code by a designated delivery
service. If the commissioner of finance finds that any delivery service
designated by such secretary is inadequate for the needs of the city,
the commissioner of finance may withdraw such designation for purposes
of this title. The commissioner of finance may also designate additional
delivery services meeting the criteria of section seventy-five hundred
two of the internal revenue code for purposes of this title, or may
A. 10030 821
withdraw any such designation if the commissioner of finance finds that
a delivery service so designated is inadequate for the needs of the
city. Any reference in subdivision d of this section to the United
States mail shall be treated as including a reference to any delivery
service designated by the commissioner of finance and any reference in
subdivision d of this section to a United States postmark shall be
treated as including a reference to any date recorded or marked in the
manner described in section seventy-five hundred two of the internal
revenue code by a delivery service designated by the commissioner of
finance. Notwithstanding the provisions of this paragraph, any with-
drawal of designation or additional designation by the commissioner of
finance shall not be effective for purposes of service upon the tax
appeals tribunal, unless and until such withdrawal of designation or
additional designation is ratified by the president of the tax appeals
tribunal.
(2) Any equivalent of registered or certified mail designated by the
United States secretary of the treasury, or as may be designated by the
commissioner of finance pursuant to the same criteria used by such
secretary for such designations pursuant to section seventy-five hundred
two of the internal revenue code, shall be included within the meaning
of registered or certified mail as used in subdivision d of this
section. If the commissioner of finance finds that any equivalent of
registered or certified mail designated by such secretary or the commis-
sioner of finance is inadequate for the needs of the city, the commis-
sioner of finance may withdraw such designation for purposes of this
title. Notwithstanding the foregoing, any withdrawal of designation or
additional designation by the commissioner of finance shall not be
effective for purposes of service upon the tax appeals tribunal, unless
and until such withdrawal of designation or additional designation is
ratified by the president of the tax appeals tribunal.
§ 11-1216 Disposition of revenues. All revenues resulting from the
imposition of the tax under this chapter at race meeting grounds or
enclosures located wholly within the city of Staten Island shall be
credited and deposited in the general fund of the city.
CHAPTER 13
CIGARETTE TAX
§ 11-1301 Definitions. When used in this chapter the following words
shall have the meanings herein indicated:
1. "Cigarette." (a) Any roll for smoking made wholly or in part of
tobacco or any other substance wrapped in paper or in any other
substance not containing tobacco, and (b) any roll for smoking made
wholly or in part of tobacco wrapped in any substance containing tobacco
which, because of its appearance, the type of tobacco used in the
filler, or its packaging and labeling, is likely to be offered to, or
purchased by, consumers as a cigarette described in paragraph (a) of
this subdivision. However, a roll will not be considered to be a ciga-
rette for purposes of paragraph (b) of this subdivision if it is not
treated as a cigarette for federal excise tax purposes under the appli-
cable federal statute in effect on April first, two thousand eight.
"Cigarette" shall not include a research tobacco product.
2. "Person." Any individual, partnership, society, association, joint-
stock company, corporation, estate, receiver, trustee, assignee, referee
or any other person acting in a fiduciary or representative capacity,
A. 10030 822
whether appointed by a court or otherwise, and any combination of indi-
viduals.
3. "Sale or purchase." Any transfer of title or possession or both,
exchange or barter, conditional or otherwise, in any manner or by any
means whatsoever or any agreement therefor.
4. "Use." Any exercise of a right or power, actual or constructive,
and shall include but is not limited to the receipt, storage, or any
keeping or retention for any length of time, but shall not include
possession for sale by a dealer.
5. "Dealer." Any wholesale dealer or retail dealer as defined in
subdivisions six and seven of this section.
6. "Wholesale dealer." Any person who sells cigarettes or tobacco
products to retail dealers or other persons for purposes of resale only,
and any person who owns, operates or maintains one or more cigarette
vending machines in, at or upon premises owned or occupied by any other
person.
7. "Retail dealer." Any person other than a wholesale dealer engaged
in selling cigarettes or tobacco products. For the purposes of this
chapter, the possession or transportation at any one time of five thou-
sand or more cigarettes or little cigars, or more than fifty cigars, or
more than one pound of loose tobacco, smokeless tobacco, snus or shisha,
or any combination thereof, by any person other than a manufacturer, an
agent, a licensed wholesale dealer or a person delivering cigarettes or
tobacco products in the regular course of business for a manufacturer,
an agent or a licensed wholesale or retail dealer, shall be presumptive
evidence that such person is a retail dealer.
8. "Package." The individual package, box or other container in or
from which retail sales of cigarettes are normally made or intended to
be made.
9. "Agent." Any person authorized to purchase and affix adhesive or
meter stamps under this chapter who is designated as an agent by the
commissioner of finance.
10. "Comptroller." The comptroller of the city.
11. "Commissioner of finance." The commissioner of finance of the
city.
12. "City." The city of Staten Island.
13. "Tax appeals tribunal." The tax appeals tribunal established by
section one hundred sixty-eight of the charter of the preceding munici-
pality as it existed January first, nineteen hundred ninety-four.
14. "Cigar." Any roll of tobacco for smoking that is wrapped in leaf
tobacco or in any substance containing tobacco, with or without a tip or
mouthpiece. Cigar does not include a little cigar as defined in this
section.
15. "Little cigar." Any roll of tobacco for smoking that is wrapped in
leaf tobacco or in any substance containing tobacco and that weighs no
more than four pounds per thousand or has a cellulose acetate or other
integrated filter.
16. "Loose tobacco." Any product that consists of loose leaves or
pieces of tobacco that is intended for use by consumers in a pipe, roll-
your-own cigarette, or similar product or device.
17. "Smokeless tobacco." Any tobacco product that consists of cut,
ground, powdered, or leaf tobacco and that is intended to be placed in
the oral or nasal cavity.
18. "Snus." Any smokeless tobacco product marketed and sold as snus,
and sold in ready-to-use pouches or loose as a moist powder.
A. 10030 823
19. "Tobacco product." Any product which contains tobacco that is
intended for human consumption, including any component, part, or acces-
sory of such product. Tobacco product shall include, but not be limited
to, any cigar, little cigar, chewing tobacco, pipe tobacco, roll-your-
own tobacco, snus, bidi, snuff, shisha, or dissolvable tobacco product.
Tobacco product shall not include cigarettes or any product that has
been approved by the United States food and drug administration for sale
as a tobacco use cessation product or for other medical purposes and
that is being marketed and sold solely for such purposes. "Tobacco
products" shall not include research tobacco products.
20. "Shisha." Any product that contains tobacco and is smoked or
intended to be smoked in a hookah or water pipe.
21. "Research tobacco product." A tobacco product or cigarette that is
labeled as a research tobacco product, is manufactured for use in
research for health, scientific, or similar experimental purposes, is
exclusively used for such purposes by an accredited college, university
or hospital, or a researcher affiliated with an accredited college,
university or hospital, and is not offered for sale or sold to consumers
for any purpose.
§ 11-1302 Imposition of tax. a. There is hereby imposed and shall
be paid a tax on:
1. All cigarettes possessed in the city for sale except as provided
in this section;
2. The use of all cigarettes in the city except as provided in this
section;
3. It is intended that the ultimate incidence of and liability for the
tax shall be upon the consumer, and that any agent, distributor or deal-
er who shall pay the tax to the commissioner of finance shall collect
the tax from the purchaser or consumer. Such tax shall be at the rate of
four cents for each ten cigarettes or fraction thereof, provided, howev-
er, that if a package of cigarettes contains more than twenty ciga-
rettes, the rate of tax on the cigarettes in such package in excess of
twenty shall be two cents for each five cigarettes or fraction thereof.
Provided further, however, that on and after July second, two thousand
two, such tax shall be at the rate of seventy-five cents for each ten
cigarettes or fraction thereof, provided, however, that if a package of
cigarettes contains more than twenty cigarettes, the rate of tax on the
cigarettes in such package in excess of twenty shall be thirty-eight
cents for each five cigarettes or fraction thereof. Such tax shall be
imposed only once on the same package of cigarettes.
b. The tax imposed by this section shall not apply to:
1. The use, otherwise than for sale, of four hundred cigarettes or
less brought into the city, on or in possession of, any person;
2. Cigarettes sold to the United States;
3. Cigarettes sold to or by a voluntary unincorporated organization
of the armed forces of the United States operating a place for the sale
of goods pursuant to regulations promulgated by the appropriate execu-
tive agency of the United States;
4. Cigarettes possessed in the city by any agent or wholesale dealer
for sale to a dealer outside the city or for sale and shipment to any
person in another state for use there, provided such agent or wholesale
dealer complies with the regulations relating thereto.
c. The tax imposed under this section shall be in addition to any and
all other taxes.
d. It shall be presumed that all sales or uses mentioned in this
section are subject to tax until the contrary is established, and the
A. 10030 824
burden of proof that a sale or use is not taxable under this section
shall be upon the vendor or the purchaser.
e. Except as provided in this section, the tax shall be advanced and
paid by the agent or distributor. The agent shall be liable for the
collection and payment of the tax to the commissioner of finance by
purchasing from the commissioner of finance adhesive stamps of such
design and denomination as may be prescribed by such commissioner,
subject to the approval of the state commissioner of taxation and
finance. The tax may also be paid by the use of such metering machines
as are prescribed by the commissioner of finance subject to the approval
of the state commissioner of taxation and finance.
f. Within twenty-four hours after liability for the tax on the use of
cigarettes accrues each person liable for the tax shall file with the
commissioner of finance a return in such form as the commissioner of
finance may prescribe, together with a remittance of the tax shown to be
due thereon.
g. Agents located within or without the city shall purchase stamps
and affix them in the manner prescribed to packages of cigarettes to be
sold within the city.
h. The amount of taxes advanced and paid by the agent or distributor
as provided in this section shall be added to and collected as part of
the sales price of the cigarettes.
i. The commissioner of finance, notwithstanding any other provision
of this chapter, may, subject to the approval of the state commissioner
of taxation and finance, provide by regulation that the tax imposed by
this section shall be collected without the use of stamps.
§ 11-1302.1. Imposition of tax on tobacco products. a. In accordance
with section one hundred ten of the public housing law, an excise tax on
the sale of tobacco products is hereby imposed and shall be paid on all
tobacco products possessed in the city for sale, except as provided
under this section. It is intended that the ultimate incidence of and
liability for the tax shall be upon the consumer. Any dealer or distrib-
utor who pays the tax to the commissioner of finance shall collect the
tax from the purchaser or consumer. Such tax shall be at the rate of ten
percent of the price floor for a package of the specified category of
tobacco product, exclusive of sales tax, set forth in the following
table, which shall be consistent with the price floors described in
subdivision d of section 17-176.1 of the code of the preceding munici-
pality:
Tobacco Product Price floor Amount of OTP tax
(excluding OTP and (excluding sales tax)
sales taxes)
Cigar $8.00 per cigar sold $0.80 per cigar; for
individually; for a a package, $0.80 for
package, number of first cigar, plus
cigars multiplied by $0.175 for each
$1.75 plus $6.25 additional cigar
Little cigar $10.95 per pack of 20 $1.09 per pack
little cigars
Smokeless tobacco $8.00 per 1.2 oz. pack- $0.80 per 1.2 oz. plus
age plus $2.00 for each an additional $0.20 for
additional 0.3 oz. or each 0.3 oz. or any
A. 10030 825
any fraction thereof in fraction thereof in
excess of 1.2 oz. excess of 1.2 oz.
Snus $8.00 per 0.32 oz. pack- $0.80 per 0.32 oz.
age plus $2.00 for each plus an additional
additional 0.08 oz. or $0.20 for each 0.08 oz.
any fraction thereof in or any fraction thereof
excess of 0.32 oz. in excess of 0.32 oz.
Shisha $17.00 per 3.5 oz. pack- $1.70 per 3.5 oz. plus
age plus $3.40 for each an additional $0.34 for
additional 0.7 oz. or for each 0.7 oz. or any
any fraction thereof in fraction thereof in
excess of 3.5 oz. excess of 3.5 oz.
Loose tobacco $2.55 per 1.5 oz. pack- $0.25 per 1.5 oz. pack-
age plus $0.51 for each age plus an additional
additional 0.3 oz. or $0.05 for each 0.3 oz.
any fraction thereof or any fraction thereof
in excess of 1.5 oz. in excess of 1.5 oz.
b. The tax imposed hereunder shall not apply to:
1. The state of New York, or any public corporation, including a
public corporation created pursuant to agreement or compact with another
state or the Dominion of Canada, improvement district or other political
subdivision of the state where it is the purchaser, user or consumer;
2. The United States of America, in so far as it is immune from taxa-
tion;
3. The United Nations or other world-wide international organizations
of which the United States of America is a member;
4. Any corporation, or association, or trust, or community chest, fund
or foundation, organized and operated exclusively for religious, chari-
table, or educational purposes, or for the prevention of cruelty to
children or animals, no part of the net earnings of which inures to the
benefit of any private shareholder or individual, and no substantial
part of the activities of which is carrying on propaganda, or otherwise
attempting to influence legislation; provided, however, that nothing in
this paragraph shall include an organization operated for the primary
purpose of carrying on a trade or business for profit, whether or not
all of its profits are payable to one or more organizations described in
this paragraph; and
5. Tobacco products possessed in the city by any dealer for sale
outside the city or for sale and shipment to any person in another state
for use there, provided such dealer complies with the regulations relat-
ing thereto.
c. Nothing in subdivision b of this section shall exempt sales by any
shop or store operated by any college, university or other public or
private institution for higher education from the taxes described in
this section.
d. The tax imposed under this section shall be in addition to any and
all other taxes.
e. It shall be presumed that all sales mentioned in this section are
subject to tax until the contrary is established, and the burden of
proof that a sale is not taxable under this section shall be upon the
dealer or the purchaser.
A. 10030 826
f. 1. Except as provided in this subdivision, the tax shall be
advanced and paid by the wholesale dealer. The wholesale dealer shall be
liable for the collection and payment of the tax to the commissioner of
finance as required under subdivision g of this section. The commission-
er may require the wholesale dealer to keep tobacco products for which
the tax has not yet been paid separately from tobacco products for which
the tax has been paid. For purposes of this chapter, retention by the
wholesale dealer of any tobacco products beyond the time prescribed for
payment under this section, without having made the requisite payment,
or storing any such products in violation of any separation requirements
prescribed by the commissioner, shall be presumptive evidence that such
tobacco products are possessed in violation of the provisions of this
chapter.
2. Every retail dealer shall be liable for the tax on all tobacco
products in his or her possession at any time, upon which tax has not
been paid, and the failure of any retail dealer to produce and exhibit
to the commissioner of finance or such commissioner's duly authorized
representatives upon demand, an invoice by a licensed wholesale dealer
for any tobacco products in his or her possession, shall be presumptive
evidence the tax thereon has not been paid, that such retail dealer is
liable for the tax thereon, and the tobacco products are possessed in
violation of this chapter, unless evidence of such invoice or payment
shall later be produced.
g. 1. Each wholesale dealer shall file with the commissioner of
finance a return, on a form required by such commissioner, indicating
the amount of tax due pursuant to this section and any other information
the commissioner may require, on a monthly basis, or on such other regu-
lar interval as such commissioner may prescribe. Each wholesale dealer
shall file the return on the twentieth day of the month following the
end of the month or other interval covered by the return, unless the
commissioner of finance prescribes a greater number of days following
the end of the month or a different reporting interval. Each wholesale
dealer shall pay the amount of tax due upon filing the return unless the
commissioner prescribes a different date or time for such payment.
2. The commissioner of finance may:
(A) Authorize another person, including a distributor as defined in
subdivision twelve of section four hundred seventy of the tax law, who
is not a wholesale dealer, to advance and pay the tax imposed under this
section;
(B) Exempt wholesale dealers from the requirements of this subdivi-
sion, upon such conditions as may be imposed by such commissioner, if he
or she is satisfied the tax on the tobacco products has been or is being
advanced and paid by another wholesale dealer or a distributor author-
ized under this subdivision.
h. The amount of taxes advanced and paid by the wholesale dealer
pursuant to this section shall be added to and collected as part of the
sales price of the tobacco products.
§ 11-1303 License. a. License required of wholesale and retail deal-
ers. 1. It shall be unlawful for a person to engage in business as a
wholesale or retail dealer without a license as prescribed in this
section or subchapter one of chapter two of title twenty of the code of
the preceding municipality, whichever is applicable.
2. It shall be unlawful for a person to permit any premises under such
person's control to be used by any other person in violation of para-
graph one of subdivision a of this section.
A. 10030 827
b. Application for license. 1. Wholesale tobacco license. In order to
obtain a license to engage in business as a wholesale dealer, a person
shall file application with the commissioner of finance for one license
for each place of business that he or she desires to have for the sale
of cigarettes or tobacco products in the city. Every application for a
wholesale tobacco license shall be made upon a form prescribed and
prepared by the commissioner of finance and shall set forth such infor-
mation as the commissioner shall require. The commissioner of finance
may, for cause, refuse to issue a wholesale tobacco license. Upon
approval of the application, the commissioner of finance shall grant and
issue to the applicant a wholesale tobacco license for each place of
business within the city set forth in the application. Wholesale tobacco
licenses shall not be assignable and shall be valid only for the persons
in whose names such licenses have been issued and for the transaction of
business in the places designated therein and shall at all times be
conspicuously displayed at the places for which issued.
2. Retail tobacco license. In order to obtain a license to engage in
business as a retail dealer, a person shall file application with the
commissioner of consumer affairs and worker protection in accordance
with the provisions of section 20-202 of the code of the preceding muni-
cipality.
c. Duplicate licenses. Whenever any license issued by the commissioner
of finance under the provisions of this section is defaced, destroyed or
lost, the commissioner of finance shall issue a duplicate license to the
holder of the defaced, destroyed or lost license upon the payment of a
fee of fifteen dollars. A duplicate retail dealer license may be
obtained from the commissioner of consumer and worker protection as
provided in section 20-204 of the code of the preceding municipality.
d. Suspension or revocation of licenses. (1) After a hearing, the
commissioner of finance may suspend or revoke a wholesale tobacco
license and the commissioner of consumer and worker protection, upon
notice from the commissioner of finance, may suspend or revoke a retail
tobacco license whenever the commissioner of finance finds that the
holder thereof has failed to comply with any of the provisions of this
chapter or any rules of the commissioner of finance prescribed, adopted
and promulgated under this chapter.
(2) The commissioner of finance may also suspend or revoke a wholesale
tobacco license in accordance with the requirements of any other
sections of this code or any rules promulgated thereunder which author-
izes the suspension or revocation of a wholesale tobacco license.
(3) The commissioner of consumer and worker protection may also
suspend or revoke a retail tobacco license in accordance with the
requirements of any other section of this code or any rules promulgated
thereunder which authorize suspension or revocation of a retail tobacco
license.
(4) Upon suspending or revoking any wholesale tobacco license, the
commissioner of finance shall direct the holder thereof to surrender to
the commissioner of finance immediately all wholesale tobacco licenses
or duplicates thereof issued to such holder and the holder shall surren-
der promptly all such licenses to the commissioner of finance as
directed. Before the commissioner of finance suspends or revokes a
wholesale tobacco license or notifies the commissioner of consumer and
worker protection of a finding of a violation of this chapter with
respect to a retail tobacco license pursuant to paragraph one of this
subdivision, the commissioner of finance shall notify the holder and the
holder shall be entitled to a hearing, if desired, if the holder, within
A. 10030 828
ninety days from the date of such notification, or, if the commissioner
of finance has established a conciliation procedure pursuant to section
11-124 of this title and the taxpayer has requested a conciliation
conference in accordance therewith, within ninety days from the mailing
of a conciliation decision or the date of the commissioner's confirma-
tion of the discontinuance of the conciliation proceeding, both (A)
serves a petition upon the commissioner of finance and (B) files a peti-
tion with the tax appeals tribunal for a hearing. After such hearing,
the commissioner of finance, good cause appearing therefor, may suspend
or revoke the wholesale tobacco license, and, in the case of a retail
tobacco license, notify the commissioner of consumer and worker
protection of a violation of this chapter or any rules promulgated ther-
eunder. Upon such notification, the commissioner of consumer and worker
protection may suspend or revoke a retail cigarette license as provided
in subdivision b of section 20-206 of the code of the preceding munici-
pality. The commissioner of finance may, by rule, provide for granting a
similar hearing to an applicant who has been refused a wholesale ciga-
rette license by the commissioner of finance.
e. Prohibited sales and purchases. No agent or dealer shall sell ciga-
rettes or tobacco products to an unlicensed wholesale or retail dealer,
or to a wholesale or retail dealer whose license has been suspended or
revoked.
No dealer shall purchase cigarettes or tobacco products from any
person other than a manufacturer or a licensed wholesale dealer.
f. Retail dealers. The commissioner of finance may, after hearing,
issue an order prohibiting a retail dealer from selling cigarettes, for
such period as the order shall specify, for failure to comply with any
of the provisions of this chapter or any rules or regulations of the
commissioner of finance prescribed, adopted and promulgated under this
chapter.
g. License fees; numbering and registering of licenses; term. 1. The
annual fee for a wholesale dealer's license shall be six hundred
dollars, and the annual fee for a retail dealer's license shall be as
provided in subdivision c of section 20-202 of the code of the preceding
municipality.
2. Wholesale tobacco licenses shall be regularly numbered and duly
registered.
3. Wholesale tobacco licenses shall expire on January thirty-first
next succeeding the date of issuance unless sooner suspended or revoked.
§ 11-1304 Preparation and sale of stamps; commissions. a. The
commissioner of finance shall, subject to the approval of the state tax
commission, prescribe, prepare and furnish stamps of such denominations
and quantities as may be necessary for the payment of the tax imposed by
this chapter, and may, from time to time, provide for the issuance and
exclusive use of stamps of a new design and forbid the use of stamps of
any other design. Such stamps shall be in the form of a single stamp
for the payment of the tax imposed by this chapter or, in lieu thereof,
a joint single stamp to be prepared and issued by the state of New York
and the city for the payment of the tax imposed by this chapter and the
taxes imposed by article twenty of the tax law. The commissioner of
finance may make such arrangements with the state tax commission for the
method of acquiring and the manner of sharing the costs of such joint
single stamps as he or she deems appropriate. The commissioner of
finance, subject to the approval of the state commissioner of taxation
and finance, shall make provisions for the sale of such stamps at such
A. 10030 829
places as he or she may deem necessary, and may appoint fiscal agents
for such purpose.
b. The commissioner of finance may appoint wholesale dealers of ciga-
rettes and any other person within or without the city as agents to
affix stamps to be used in paying the tax hereby imposed, but an agent
shall at all times have the right to appoint the person in his or her
employ who is to affix the stamps to any cigarettes under the agent's
control. Whenever the commissioner of finance shall sell, consign or
deliver to any such agent any such stamps, such agent shall be entitled
to receive as compensation for his or her services and expenses in
affixing such stamps, and to retain out of the moneys to be paid by the
agent for such stamps, a commission on the par value thereof. The
commissioner of finance is hereby authorized to prescribe a schedule of
commissions not exceeding five per centum, allowable to such agent for
affixing such stamps; provided, however, that the commissioner of
finance may authorize commissions to agents and temporary agents not
exceeding ten per centum for a special period not exceeding fifteen days
immediately following the enactment of this chapter to cover the initial
stamping of packages of cigarettes. Such schedule shall be uniform for
each type and denomination of stamp used, and may be on a graduated
scale with respect to the number of stamps purchased. In the event that
a joint stamp is issued, the commissions allowed shall be determined
jointly by the state commissioner of taxation and finance and the
commissioner of finance and shall be based on the full par value of such
stamp. The extent to which the city and the state of New York shall
bear the expense of such commissions shall be determined by agreement
between the commissioner of taxation and finance and the commissioner
of finance. The commissioner of finance may in his or her discretion
permit an agent to pay for such stamps within thirty days after the date
of sale, consignment or delivery of such stamps to such agents, and may
require any such agent to file with the commissioner of finance a bond,
issued by a surety company approved by the superintendent of insurance
as to solvency and responsibility and authorized to transact business in
the state, in such amounts as the commissioner of finance may fix, to
secure the payment of any sums from such agent pursuant to this chapter.
c. The commissioner of finance may redeem unused stamps lawfully in
the possession of any person. No person shall sell or offer for sale
any stamp issued under this chapter, except by written permission of the
commissioner of finance. The commissioner of finance may prescribe
rules and regulations concerning refunds, sales of stamps and redemp-
tions under the provisions of this chapter.
d. (1) Except as provided in this subdivision, it shall be unlawful
for any person to sell, offer for sale, possess or transport any affixed
or unaffixed false, altered or counterfeit cigarette tax stamps,
imprints or impressions.
(2) Paragraph one of this subdivision shall not apply to:
(A) a person, other than a retail dealer, in possession of twenty or
fewer affixed tax stamps;
(B) public officers or employees in the performance of their official
duties requiring possession or control of affixed or unaffixed false,
altered or counterfeit cigarette tax stamps, imprints or impressions; or
(C) any person authorized by the commissioner of finance or the
commissioner of the department of taxation and finance of the state of
New York to perform law enforcement functions.
§ 11-1305 Affixation and cancellation of stamps; presumptions. a.
Each agent shall affix to each package of cigarettes stamps evidencing
A. 10030 830
the payment of tax imposed by this chapter and shall cancel such stamps
prior to delivery of such cigarettes to any dealer in the city, unless
stamps have been affixed to such packages of cigarettes and cancelled
before such agent received them.
b. Each dealer, other than an agent, in the city shall immediately
upon the receipt of any cigarettes at his or her place of business mark
in ink on each unopened box, carton or other container of such ciga-
rettes the word "received" and the year, month, day and hour of such
receipt and shall affix his or her signature thereto or shall mark them
in any other manner prescribed by the commissioner of finance. In addi-
tion, each retail dealer shall, within twenty-four hours after receipt
of any cigarettes at his or her place of business and prior to exposing
for sale or sale by such retail dealer of such cigarettes, open such
box, carton or other container and, unless such stamps have been previ-
ously affixed, immediately notify the dealer from whom he or she
purchased such cigarettes and arrange for the replacement by the dealer
of such cigarettes by cigarettes with such stamps affixed within twen-
ty-four hours.
c. Stamps shall be cancelled in the manner prescribed by regulation.
d. Whenever any cigarettes are found in the place of business of a
dealer without the stamps affixed and cancelled, or not marked as having
been received within the preceding twenty-four hours, the prima facie
presumption shall arise that such cigarettes are kept therein in
violation of the provisions of this chapter.
e. Stamps shall be affixed to each package of cigarettes of an aggre-
gate denomination not less than the amount of the tax upon the contents
therein, and shall be affixed in such manner as to be visible to the
purchaser.
§ 11-1306 Possession and transportation of unstamped cigarettes.
Every person who shall possess or transport upon the public highways,
roads or streets of this city more than four hundred cigarettes in
unstamped packages, shall be required to have in his or her actual
possession invoices or delivery tickets for such cigarettes. All such
invoices or delivery tickets shall show the true name and address of the
consignor or seller, the true name and address of the consignee or
purchaser and the quantity and brands of the cigarettes transported.
The absence of such invoices or delivery tickets shall be prima facie
evidence that such person is a dealer in cigarettes in the city and
subject to the provisions of this chapter.
§ 11-1307 Records to be kept; examination. a. 1. At the time of
delivering cigarettes to any person in the city, each agent or wholesale
dealer shall make a true duplicate invoice showing the date of delivery,
the number of packages and the number of cigarettes contained therein in
each shipment of cigarettes delivered, and the name of the purchaser to
whom delivery is made, and shall retain the same for a period of three
years subject to the use and inspection of the commissioner of finance.
Each dealer shall procure and retain invoices showing the number of
packages and the number of cigarettes contained therein in each shipment
of cigarettes received by such dealer, the date thereof, and the name of
the shipper, and shall retain the same for a period of three years
subject to the use and inspection of the commissioner of finance.
2. At the time of delivering tobacco products to any person in the
city, each wholesale dealer shall make a true duplicate invoice showing
the date of delivery, the number of packages and the number of tobacco
products contained therein as well as any tobacco products not in pack-
ages in each shipment of tobacco products delivered, and the name of the
A. 10030 831
purchaser to whom delivery is made and shall retain the same for a peri-
od of three years subject to the use and inspection of the commissioner
of finance. Each dealer shall procure and retain invoices showing the
number of packages and the number of tobacco products contained therein
as well as any tobacco products not in packages in each shipment of
tobacco products received by such dealer, the date thereof, and the name
of the shipper, and shall retain the same for a period of three years
subject to the use and inspection of the commissioner of finance.
3. Each dealer shall retain any other records and in such form as may
be required by the commissioner of finance indicating proof of the
payment of the tax imposed under section 11-1302.1 of this chapter. Any
failure to provide such records upon request by the commissioner of
finance or such commissioner's duly authorized representatives shall be
presumptive evidence that the dealer has violated the provisions of this
chapter.
b. The commissioner of finance by regulation may provide that whenever
cigarettes or tobacco products are shipped into the city, the railroad
company, express company, trucking company, or carrier transporting any
shipment thereof shall file with the commissioner of finance a copy of
the freight bill within ten days after the delivery in the city of each
shipment.
c. All dealers shall maintain and keep for a period of three years
such other records of cigarettes or tobacco products received or sold
within the city as may be required by the commissioner of finance. All
wholesale dealers shall maintain and keep for a period of three years
such other records of cigarettes or tobacco products delivered within
the city.
d. Without limiting the powers granted the commissioner of consumer
and worker protection pursuant to title twenty of the code of the
preceding municipality and any rules promulgated thereunder, the commis-
sioner of finance or the commissioner's duly authorized representatives
are hereby authorized to examine the books, papers, invoices and other
records, and stock of cigarettes or tobacco products in and upon any
premises where the same are placed, stored and sold, and equipment of
any such agent or dealer pertaining to the sale and delivery of ciga-
rettes or tobacco products taxable under this chapter. To verify the
accuracy of the tax imposed and assessed by this chapter, each such
person is hereby directed and required to give to the commissioner of
finance or the commissioner's duly authorized representatives, the
means, facilities and opportunity for such examinations as are herein
provided for and required.
e. The commissioner of finance shall investigate any failure to pay
the tax required by this chapter or any other failure to comply with
this chapter or the rules or regulations promulgated thereunder, and
shall take the necessary steps to enforce compliance therewith.
§ 11-1308 General powers of the commissioner of finance. In addition
to the powers granted to the commissioner of finance in this chapter, he
or she is hereby authorized and empowered:
1. To make, adopt and amend rules and regulations appropriate to the
carrying out of this chapter and the purposes thereof; and to require
the filing of reports by agents and/or dealers;
2. To prescribe the method and the means to be used in the cancella-
tion of stamps;
3. To fix the denominations and the method of sale of stamps;
4. To delegate his or her powers to a deputy or other employee or
employees of the department of finance;
A. 10030 832
5. To extend, for cause shown, the time for filing any return or
reports for a period not exceeding thirty days; and to compromise
disputed claims in connection with the taxes hereby imposed;
6. To assess, determine, revise and adjust the taxes imposed under
this chapter;
7. To request information from the state commissioner of taxation and
finance, the treasury department of the United States or the taxing
officials of any other state or city that imposes a similar tax to any
tax imposed by this chapter, and to afford information to such commis-
sion, department or other taxing official, any other provision of this
chapter to the contrary notwithstanding;
8. To enter into an arrangement with the state commissioner of taxa-
tion and finance with respect to cooperative collection, auditing or
administration of the taxes imposed by this chapter and the taxes
imposed by article twenty of the tax law of the state of New York.
9. To prescribe forms to be filled out by the vendor or purchaser, or
both, in each instance in which a sale is made by an agent or wholesale
dealer to a person outside the state or the city or to a dealer in the
city for purposes of resale outside the state or the city.
10. To appoint any dealer as a temporary agent to buy and affix
stamps for a period not in excess of fifteen days.
11. In furtherance of the purposes of paragraph three of subdivision
a of section 11-1302 of this chapter, to provide by appropriate regu-
lation for the maintenance of such differentials in wholesale and retail
prices of cigarettes sold by any vendor, other than the manufacturer, so
as to reflect the amounts of tax attributable to the tar and nicotine
content of cigarettes sold. In so doing he or she may use and consider
the factory price of various brands of cigarettes. In addition, the
commissioner may consider the mode or method by which retail sales are
effected and limit his or her regulations so as to affect any one or
more or all of such modes or methods.
§ 11-1309 Notifying taxpayers of assessments. a. The owner of any
lot, piece or parcel of land in the city of Staten Island or any person
interested in such lot, piece or parcel, may file with the bureau of
city collections a statement containing a brief description of such
land, together with the section, block and lot number thereof, or such
other designation as at the time is established by the department of
finance, and a statement of the applicant's interest therein, together
with a written request that such lot, piece or parcel of land be regis-
tered in such bureau, in the name of the applicant. In such statement
the applicant shall designate a post office address to which notifica-
tions addressed to such applicant shall be sent. A brief description of
such lot, piece or parcel of land corresponding to the description ther-
eof in the statement so filed, together with the name of the applicant
and his or her post office address and the date of such application,
shall thereupon be registered in the offices of such bureau as herein-
after provided.
b. As soon as any assessment for a local improvement shall have been
confirmed, including assessments confirmed by a court of record, and the
list thereof shall have been entered and filed in the bureau of city
collections, such assessment list shall be examined and thereupon, with-
in twenty days after such entry there shall be mailed a notice addressed
to each person in whose name any lot, piece or parcel of land, affected
by such assessment, is registered, at the post office address registered
in the records of such bureau, which notice shall contain the brief
description of the lot, piece or parcel of land registered in the name
A. 10030 833
of the person to whom such notice is addressed, together with the amount
assessed thereon, date of entry, and title of the improvement for which
such assessment is made, and a statement of the rate of interest or
penalty imposed for the nonpayment of such assessment, and the date from
which the interest or penalty will be computed. Failure to comply with
the provisions of this section, however, shall in no manner affect the
validity or collectibility of any assessment heretofore or hereafter
confirmed, nor shall any claim arise or exist against the comptroller,
the commissioner of finance, the city collector or any officer of the
city by reason of such failure.
c. The city collector shall for the purpose of this section provide
appropriate records for each section of the city as the same shall
appear upon the tax maps of the city.
§ 11-1310 Determination of tax. If any person fails to pay the tax, or
to file a return required by this chapter or if a return, when filed, is
insufficient and the maker fails to file a corrected or sufficient
return within ten days after the same may be required by notice from the
commissioner of finance, the commissioner of finance shall determine the
amount of tax due from such information as may be obtainable or on the
basis of external indices, such as number of cigarettes purchased or
sold, number of tobacco products purchased or sold, stock on hand,
volume of sales by similar dealers or other factors. Notice of such
determination shall be given to the person liable for the payment of the
tax. Such determination shall finally and irrevocably fix the tax unless
the person against whom it is assessed shall, within ninety days of the
giving of such notice, or, if the commissioner of finance has estab-
lished a conciliation procedure pursuant to section 11-124 of this title
and the person liable for the tax has requested a conciliation confer-
ence in accordance therewith, within ninety days from the mailing of a
conciliation decision or the date of the commissioner's confirmation of
the discontinuance of the conciliation proceeding, both (1) serves a
petition upon the commissioner of finance and (2) files a petition with
the tax appeals tribunal for a hearing, or unless the commissioner of
finance shall of his or her own motion redetermine such tax. Such hear-
ing and any appeal to the tax appeals tribunal sitting en banc from the
decision rendered in such hearing shall be conducted in the manner and
subject to the requirements prescribed by the tax appeals tribunal
pursuant to sections one hundred sixty-eight through one hundred seven-
ty-two of the charter of the preceding municipality as it existed Janu-
ary first, nineteen hundred ninety-four. After such hearing the tax
appeals tribunal shall give notice of its decision to the person liable
for the tax and to the commissioner of finance. A decision of the tax
appeals tribunal sitting en banc shall be reviewable for error, illegal-
ity, unconstitutionality or any other reason whatsoever by a proceeding
under article seventy-eight of the civil practice law and rules if
instituted by the person against whom the tax was assessed within four
months after the giving of the notice of such tax appeals tribunal deci-
sion; provided however, that if such decision regards the tax imposed
under section 11-1302.1 of this chapter, such proceeding must be insti-
tuted by the person against whom the tax was assessed within thirty days
after the giving of the notice of such tax appeals tribunal decision.
Such proceeding shall not be instituted by a person liable for the tax
unless the amount of any tax sought to be reviewed with interest and
penalties thereon, if any, shall have first been deposited with the
commissioner of finance and an undertaking filed with the commissioner
of finance in such amount and with such sureties as a justice of the
A. 10030 834
supreme court shall approve, to the effect that if such proceeding be
dismissed or the tax confirmed, such person will pay all costs and
charges which may accrue in the prosecution of the proceeding.
§ 11-1311 Refunds. a. In the manner provided in this subdivision the
commissioner of finance shall refund, without interest, any tax, inter-
est or penalty erroneously, illegally or unconstitutionally collected or
paid. In addition, whenever any cigarettes upon which stamps have been
affixed have been sold and shipped to a dealer outside the city for sale
there or to any person in another state for use there, or have become
unfit for use and consumption or unsalable, or have been destroyed, the
dealer shall be entitled to a refund of the amount of tax paid, less the
applicable commission, with respect to such cigarettes.
In any event no refund shall be granted unless application to the
commissioner of finance therefor is made within two years after the
stamps were affixed to such cigarettes or the tax was paid, except if a
person has consented in writing to an extension of the period for
assessment of additional tax pursuant to subdivision c of section
11-1315 of this chapter, and such consent is given within the two-year
period for making a refund application provided in this subdivision, the
period for making a refund application shall not expire prior to six
months after the expiration of the period within which an assessment
could be made pursuant to such consent or any extension thereof.
Whenever a refund is made or denied by the commissioner of finance,
the commissioner shall state his or her reasons therefor and give notice
thereof to the applicant in writing. A person shall not be entitled to a
hearing in connection with such application for a refund if such person
has already had a hearing or had been given the opportunity of a hearing
as provided in section 11-1310 of this chapter or has failed to avail
himself or herself of the remedies therein provided. No refund shall be
made of a tax, interest or penalty paid pursuant to a determination of
the commissioner of finance as provided in section 11-1310 of this chap-
ter, unless the tax appeals tribunal, after a hearing as in said section
provided or the commissioner of finance, of his or her own motion, shall
have reduced the tax or penalty, or it shall have been established in a
proceeding, pursuant to article seventy-eight of the civil practice law
and rules that such determination was erroneous, illegal, unconstitu-
tional or otherwise improper, in which event a refund without interest
shall be made as provided upon the determination of such proceeding. Any
determination of the commissioner of finance denying a refund pursuant
to this subdivision shall be final and irrevocable unless the applicant
for such refund, within ninety days from the mailing of notice of such
determination, or, if the commissioner of finance has established a
conciliation procedure pursuant to section 11-124 of this title and the
applicant has requested a conciliation conference in accordance there-
with, within ninety days from the mailing of a conciliation decision or
the date of the commissioner's confirmation of the discontinuance of the
conciliation proceeding, both (1) serves a petition upon the commission-
er of finance and (2) files a petition with the tax appeals tribunal for
a hearing.
Such petition for a refund made as provided in this subdivision shall
be deemed an application for a revision of any tax, penalty or interest
complained of. Such hearing and any appeal to the tax appeals tribunal
sitting en banc from the decision rendered in such hearing shall be
conducted in the manner and subject to the requirements prescribed by
the tax appeals tribunal pursuant to sections one hundred sixty-eight
through one hundred seventy-two of the charter of the preceding munici-
A. 10030 835
pality. After such hearing, the tax appeals tribunal shall give notice
of its decision to the applicant and to the commissioner of finance.
The applicant shall be entitled to maintain a proceeding under article
seventy-eight of the civil practice law and rules to review a decision
of the tax appeals tribunal sitting en banc, provided, however, that
such proceeding is instituted within four months after such decision,
provided however, that if such decision regards the tax imposed under
section 11-1302.1 of this chapter, such proceeding must be instituted
within thirty days after such decision, and provided, further, in the
case of an application by a person liable for the tax, that a final
determination of tax due was not previously made, and that an undertak-
ing shall first be filed by such person with the commissioner of finance
in such amount and with such sureties as a justice of the supreme court
shall approve, to the effect that if such proceeding be dismissed or the
tax confirmed such person will pay all costs and charges which may
accrue in the prosecution of such proceeding.
b. If the commissioner of finance is satisfied that any dealer is
entitled to a refund the commissioner shall issue to such dealer stamps
of sufficient value to cover the refund or to make such refund.
§ 11-1312 Reserves. In cases where the taxpayer has applied for a
refund and has instituted proceedings under article seventy-eight of the
civil practice law and rules to review a determination adverse to the
taxpayer on his or her application for refund or has deposited the
amount of tax assessed in connection with proceedings under section
11-1310 of this chapter, the comptroller shall set up appropriate
reserves to meet any decision adverse to the city.
§ 11-1313 Remedies exclusive. The remedies provided by sections
11-1310 and 11-1311 of this chapter shall be the exclusive remedies
available to any person for the review of tax liability imposed by this
chapter; and no determination or proposed determination of tax or deter-
mination on an application for refund by the commissioner of finance,
nor any decision by the tax appeals tribunal or any of its administra-
tive law judges, shall be enjoined or reviewed by an action for declara-
tory judgment, an action for money had and received, or by any legal or
equitable action or proceeding other than, in the case of a decision by
the tax appeals tribunal sitting en banc, a proceeding under article
seventy-eight of the civil practice law and rules; provided, however,
that a taxpayer may proceed by declaratory judgment if the taxpayer
institutes suit within thirty days after a deficiency assessment is made
and pays the amount of the deficiency assessment to the commissioner of
finance prior to the institution of such suit and posts a bond for costs
as provided in section 11-1310 of this chapter.
§ 11-1314 Proceedings to recover tax. a. Whenever any person shall
fail to pay any tax, penalty or interest imposed by this chapter as
herein provided, the corporation counsel shall, upon the request of the
commissioner of finance, bring or cause to be brought an action to
enforce the payment of the same on behalf of the city in any court of
the state of New York or of any other state or of the United States.
If, however, the commissioner of finance in his or her discretion
believes that a taxpayer subject to the provisions of this chapter is
about to cease business, leave the state or remove or dissipate the
assets out of which the tax, interest or penalties might be satisfied
and that any such tax, interest or penalty will not be paid when due, he
or she may declare such tax, interest or penalty to be immediately due
and payable and may issue a warrant immediately.
A. 10030 836
b. In addition to all other remedies for the collection of any taxes,
penalties or interest due under the provisions of this chapter, the
commissioner of finance may with respect to any tax imposed under
section 11-1302 of this chapter or any penalties or interest related
thereto issue a warrant, directed to the city sheriff commanding the
sheriff to levy upon and sell the real and personal property of the
person liable for the tax which may be found within the city, for the
payment of the amount thereof, with any penalties and interest and the
cost of executing the warrant, and to return such warrant to the commis-
sioner of finance and to pay to the commissioner the money collected by
virtue thereof within sixty days after the receipt of such warrant. The
city sheriff shall within five days after the receipt of the warrant
file with the county clerk a copy thereof, and thereupon such clerk
shall enter in the judgment docket the name of the person mentioned in
the warrant and the amount of the taxes, penalty and interest for which
the warrant is issued and the date when such copy is filed. Thereupon
the amount of such warrant shall become a lien upon the title to and
interest in real and personal property of the person against whom the
warrant is issued. The city sheriff shall then proceed upon the warrant
in the same manner and with like effect as that provided by law in
respect to executions issued against property upon judgments of a court
of record, and for services in executing the warrant the city sheriff
shall be entitled to the same fees which he or she may collect in the
same manner. In the discretion of the commissioner of finance a warrant
of like terms, force and effect may be issued and directed to any offi-
cer or employee of the department of finance, and in the execution ther-
eof such officer or employee shall have all the powers conferred by law
upon sheriffs, but shall be entitled to no fee or compensation in excess
of the actual expenses paid in the performance of such duty. If a
warrant is returned not satisfied in full, the commissioner of finance
may from time to time issue new warrants and shall have the same reme-
dies to enforce the amount due thereunder as if the city had recovered
judgment therefor and execution thereon had been returned unsatisfied.
c. The commissioner of finance, if he or she finds that the interests
of the city will not thereby be jeopardized, and upon such conditions as
the commissioner of finance may require, may release any property from
the lien of any warrant or vacate such warrant for unpaid taxes, addi-
tions to tax, penalties and interest filed pursuant to subdivision b of
this section, and such release or vacating of the warrant may be
recorded in the office of any recording officer in which such warrant
has been filed. The clerk shall thereupon cancel and discharge as of the
original date of docketing the vacated warrant.
§ 11-1315 Notices and limitations of time. a. Any notice author-
ized or required under the provisions of this chapter may be given by
mailing the same to the person for whom it is intended in a postpaid
envelope addressed to such person at the address given in the last
return filed by such person pursuant to the provisions of this chapter
or in any application made by such person or, if no return has been
filed or application made, then to such address as may be obtainable.
The mailing of such notice shall be presumptive evidence of the receipt
of the same by the person to whom addressed. Any period of time which
is determined according to the provisions of this chapter by the giving
of notice shall commence to run from the date of mailing of such notice.
b. The provisions of the civil practice law and rules or any other
law relative to limitations of time for the enforcement of a civil reme-
dy shall not apply to any proceeding or action taken by the city to
A. 10030 837
levy, appraise, assess, determine or enforce the collection of any tax,
interest or penalty provided by this chapter. However, except in the
case of a wilfully false or fraudulent return with intent to evade the
tax, no assessment of additional tax shall be made after the expiration
of more than three years from the date of the filing of a return,
provided, that where no return has been filed as provided by law the tax
may be assessed at any time.
c. Where, before the expiration of the period prescribed herein for
the assessment of an additional tax, a person has consented in writing
that such period be extended, the amount of such additional tax due may
be determined at any time within such extended period. The period so
extended may be further extended by subsequent consents in writing made
before the expiration of the extended period.
d. If any return, claim, statement, notice, application, or other
document required to be filed, or any payment required to be made, with-
in a prescribed period or on or before a prescribed date under authority
of any provision of this chapter is, after such period or such date,
delivered by United States mail to the commissioner of finance, the tax
appeals tribunal, bureau, office, officer or person with which or with
whom such document is required to be filed, or to which or to whom such
payment is required to be made, the date of the United States postmark
stamped on the envelope shall be deemed to be the date of delivery. This
subdivision shall apply only if the postmark date falls within the
prescribed period or on or before the prescribed date for the filing of
such document, or for making the payment, including any extension grant-
ed for such filing or payment, and only if such document or payment was
deposited in the mail, postage prepaid, properly addressed to the
commissioner of finance, the tax appeals tribunal, bureau, office, offi-
cer or person with which or with whom the document is required to be
filed or to which or to whom such payment is required to be made. If any
document is sent by United States registered mail, such registration
shall be prima facie evidence that such document was delivered to the
commissioner of finance, the tax appeals tribunal, bureau, office, offi-
cer or person to which or to whom addressed, and the date of registra-
tion shall be deemed the postmark date. The commissioner of finance or,
where relevant, the tax appeals tribunal is authorized to provide by
regulation the extent to which the provisions of this subdivision with
respect to prima facie evidence of delivery and the postmark date shall
apply to certified mail. Except as provided in subdivision f of this
section, this subdivision shall apply in the case of postmarks not made
by the United States postal service only if and to the extent provided
by regulation of the commissioner of finance or, where relevant, the tax
appeals tribunal.
e. When the last day prescribed under authority of this chapter,
including any extension of time, for performing any act falls on a
Saturday, Sunday or legal holiday in the state, the performance of such
act shall be considered timely if it is performed on the next succeeding
day which is not a Saturday, Sunday or legal holiday.
f. (1) Any reference in subdivision d of this section to the United
States mail shall be treated as including a reference to any delivery
service designated by the secretary of the treasury of the United States
pursuant to section seventy-five hundred two of the internal revenue
code and any reference in subdivision d of this section to a United
States postmark shall be treated as including a reference to any date
recorded or marked in the manner described in section seventy-five
hundred two of the internal revenue code by a designated delivery
A. 10030 838
service. If the commissioner of finance finds that any delivery service
designated by such secretary is inadequate for the needs of the city,
the commissioner of finance may withdraw such designation for purposes
of this title. The commissioner of finance may also designate additional
delivery services meeting the criteria of section seventy-five hundred
two of the internal revenue code for purposes of this title, or may
withdraw any such designation if the commissioner of finance finds that
a delivery service so designated is inadequate for the needs of the
city. Any reference in subdivision d of this section to the United
States mail shall be treated as including a reference to any delivery
service designated by the commissioner of finance and any reference in
subdivision d of this section to a United States postmark shall be
treated as including a reference to any date recorded or marked in the
manner described in section seventy-five hundred two of the internal
revenue code by a delivery service designated by the commissioner of
finance, provided, however, any withdrawal of designation or additional
designation by the commissioner of finance shall not be effective for
purposes of service upon the tax appeals tribunal, unless and until such
withdrawal of designation or additional designation is ratified by the
president of the tax appeals tribunal.
(2) Any equivalent of registered or certified mail designated by the
United States secretary of the treasury, or as may be designated by the
commissioner of finance pursuant to the same criteria used by such
secretary for such designations pursuant to section seventy-five hundred
two of the internal revenue code, shall be included within the meaning
of registered or certified mail as used in subdivision d of this
section. If the commissioner of finance finds that any equivalent of
registered or certified mail designated by such secretary or the commis-
sioner of finance is inadequate for the needs of the city, the commis-
sioner of finance may withdraw such designation for purposes of this
title, provided, however, any withdrawal of designation or additional
designation by the commissioner of finance shall not be effective for
purposes of service upon the tax appeals tribunal, unless and until such
withdrawal of designation or additional designation is ratified by the
president of the tax appeals tribunal.
§ 11-1317 Penalties and interest. a. (1) Any person failing to pay a
tax payable under section 11-1302 of this chapter when due shall be
subject to a penalty of fifty per centum of the amount of tax due, but
the commissioner of finance, if satisfied that the delay was excusable,
may remit all or any part of such penalty. Such penalty shall be paid
and disposed of in the same manner as other revenues under this chapter.
Unpaid penalties may be enforced in the same manner as the tax imposed
by section 11-1302 of this chapter.
(2) Any person failing to pay a tax payable under section 11-1302.1 of
this chapter when due shall be subject to a penalty of three hundred per
centum of the amount of tax due, but the commissioner of finance, if
satisfied that the delay was excusable, may remit all or any part of
such penalty. Such penalty shall be paid and disposed of in the same
manner as other revenues from the tax imposed under section 11-1302.1 of
this chapter. Unpaid penalties may be enforced in the same manner as the
tax imposed by section 11-1302.1 of this chapter.
b. (1) In addition to any other penalty imposed by this section, the
commissioner of finance may (a) impose a penalty of not more than one
hundred dollars for each two hundred cigarettes or fraction thereof in
excess of one thousand cigarettes in unstamped or unlawfully stamped
packages in the possession or under the control of any person and (b)
A. 10030 839
impose a penalty of not more than two hundred dollars for each ten
affixed or unaffixed false, altered or counterfeit cigarette tax stamps,
imprints or impressions, or fraction thereof, in excess of one hundred
affixed or unaffixed false, altered or counterfeit cigarette tax stamps,
imprints or impressions in the possession or under the control of any
person. Such penalty shall be determined as provided in section 11-1310
of this chapter, and may be reviewed only pursuant to such section. Such
penalty may be enforced in the same manner as the tax imposed by this
chapter. The commissioner of finance, in his or her discretion, may
remit all or part of such penalty. Such penalty shall be paid and
disposed of in the same manner as other revenues under this chapter.
(2) The penalties imposed by this paragraph may be imposed by the
commissioner of finance in addition to any other penalty imposed by this
section, but in lieu of the penalties imposed by subparagraph (a) of
paragraph one of this subdivision: (a) not less than thirty dollars but
not more than two hundred dollars for each two hundred cigarettes, or
fraction thereof, in excess of one thousand cigarettes but less than or
equal to five thousand cigarettes in unstamped or unlawfully stamped
packages knowingly in the possession or knowingly under the control of
any person; (b) not less than seventy-five dollars but not more than two
hundred dollars for each two hundred cigarettes, or fraction thereof, in
excess of five thousand cigarettes but less than or equal to twenty
thousand cigarettes in unstamped or unlawfully stamped packages knowing-
ly in the possession or knowingly under the control of any person; and
(c) not less than one hundred dollars but not more than two hundred
dollars for each two hundred cigarettes, or fraction thereof, in excess
of twenty thousand cigarettes in unstamped or unlawfully stamped pack-
ages, knowingly in the possession or knowingly under the control of any
person. Such penalty shall be determined as provided in section 11-1310
of this chapter, and may be reviewed only pursuant to such section. Such
penalty may be enforced in the same manner as the tax imposed by this
chapter. The commissioner of finance, in his or her discretion, may
remit all or part of such penalty. Such penalty shall be paid and
disposed of in the same manner as other revenues under this chapter.
c. (1) The possession within the city of more than four hundred ciga-
rettes in unstamped or unlawfully stamped packages shall be presumptive
evidence that such cigarettes are subject to tax as provided by this
chapter.
(2) Nothing in this section shall apply to common or contract carriers
or warehousemen while engaged in lawfully transporting or storing
unstamped packages of cigarettes as merchandise, nor to any employee of
such carrier or warehouseman acting within the scope of his or her
employment, nor to public officers or employees in the performance of
their official duties requiring possession or control of unstamped or
unlawfully stamped packages of cigarettes, nor to temporary incidental
possession by employees or agents of persons lawfully entitled to
possession, nor to persons whose possession is for the purpose of aiding
police officers in performing their duties.
d. (1) If any amount of tax is not paid on or before the last date
prescribed for payment, without regard to any extension of time granted
for payment, interest on such amount at the rate set by the commissioner
of finance pursuant to paragraph two of this subdivision, or, if no rate
is set, at the rate of seven and one-half percent per annum, shall be
paid for the period from such last date to the date of payment. In
computing the amount of interest to be paid, such interest shall be
compounded daily. Interest under this subdivision shall not be paid if
A. 10030 840
the amount thereof is less than one dollar. The interest imposed by this
subdivision shall be paid and disposed of in the same manner as other
revenues from this chapter. Unpaid interest may be enforced in the same
manner as the tax imposed by this chapter.
(2) (A) The commissioner of finance shall set the rate of interest to
be paid pursuant to paragraph one of this subdivision, but if no such
rate of interest is set, such rate shall be deemed to be set at seven
and one-half percent per annum. Such rate shall be the rate prescribed
in subparagraph (B) of this paragraph but shall not be less than seven
and one-half percent per annum. Any such rate set by the commissioner of
finance shall apply to taxes, or any portion thereof, which remain or
become due on or after the date on which such rate becomes effective and
shall apply only with respect to interest computed or computable for
periods or portions of periods occurring in the period in which such
rate is in effect.
(B) General rule. The rate of interest set under this subdivision
shall be the sum of (i) the federal short-term rate as provided under
paragraph three of this subdivision, plus (ii) seven percentage points.
(3) Federal short-term rate. For purposes of this subdivision:
(A) The federal short-term rate for any month shall be the federal
short-term rate determined by the United States secretary of the treas-
ury during such month in accordance with subsection (d) of section
twelve hundred seventy-four of the internal revenue code for use in
connection with section six thousand six hundred twenty-one of the
internal revenue code. Any such rate shall be rounded to the nearest
full percent, or, if a multiple of one-half of one percent, such rate
shall be increased to the next highest full percent.
(B) Period during which rate applies.
(i) In general. Except as provided in clause (ii) of this subpara-
graph, the federal short-term rate for the first month in each calendar
quarter shall apply during the first calendar quarter beginning after
such month.
(ii) Special rule for the month of September, nineteen hundred eight-
y-nine. The federal short-term rate for the month of April, nineteen
hundred eighty-nine shall apply with respect to setting the rate of
interest for the month of September, nineteen hundred eighty-nine.
(4) Publication of interest rate. The commissioner of finance shall
cause to be published in the City Record, and give other appropriate
general notice of, the interest rate to be set under this subdivision no
later than twenty days preceding the first day of the calendar quarter
during which such interest rate applies. The setting and publication of
such interest rate shall not be included within paragraph (a) of subdi-
vision five of section one thousand forty-one of the charter of the
preceding municipality as it existed January first, nineteen hundred
ninety-four relating to the definition of a rule.
e. Cross-reference: For criminal penalties, see chapter forty of this
title.
§ 11-1318 Disposition of revenues. a. All revenues resulting from the
imposition of the tax under section 11-1302 of this chapter shall be
paid into the treasury of the city and shall be credited to and deposit-
ed in the general fund of the city, except that, after the payment of
refunds with respect to such tax, effective on and after July second,
two thousand two, forty-six and one-half percent and, effective on and
after April first, two thousand three, forty-six percent of such reven-
ues, including taxes, interest and penalties, collected or received
shall be paid to the state comptroller.
A. 10030 841
(b) All revenues resulting from the imposition of the tax under
section 11-1302.1 of this chapter during a fiscal year, including any
interest and penalties, shall be paid into the treasury of the city in
accordance with section one hundred twelve of the public housing law,
and shall be payable from the city to the New York city housing authori-
ty in such fiscal year.
§ 11-1319 Construction and enforcement. Section 11-1302 and the
provisions of this chapter related thereto shall be construed and
enforced in conformity with chapter two hundred thirty-five of the laws
of nineteen hundred fifty-two. Section 11-1302.1 and the provisions of
this chapter related thereto shall be construed and enforced in conform-
ity with subdivision e of section one hundred ten and sections one
hundred eleven, one hundred twelve and one hundred thirteen of the
public housing law.
CHAPTER 14
TAX ON TRANSFER OF TAXICAB LICENSES
§ 11-1401 Definitions. When used in this chapter the following terms
shall mean or include:
1. "City." The city of Staten Island.
2. "Commissioner of finance." The commissioner of finance of the
city of Staten Island.
3. "Comptroller." The comptroller of the city of Staten Island.
4. "Consideration." The total price paid or agreed to be paid for
the transfer of a taxicab license or interest therein, whether paid or
agreed to be paid in money, property, or any other thing of value,
including the cancellation or discharge of an indebtedness or obli-
gation, without any deduction whatsoever.
5. "Person." An individual, partnership, society, association,
joint-stock company, corporation, estate, receiver, trustee, assignee,
referee or any other person acting in a fiduciary or representative
capacity, whether appointed by a court or otherwise, any combination of
individuals, and any other form of unincorporated enterprise owned or
conducted by two or more persons.
6. "Taxi and limousine commission." The city of Staten Island taxi
and limousine commission.
7. "Taxicab." Any motor vehicle carrying passengers for hire in the
city, duly licensed as a taxicab by the taxi and limousine commission,
and permitted to accept hails from passengers in the street.
8. "Taxicab license." A license issued by the taxi and limousine
commission to operate a taxicab.
9. "Taxpayer." Any person subject to tax under this chapter.
10. "Transfer." Any transfer of interest, whether or not such inter-
est constitutes title, or possession, or both, exchange or barter,
rental, lease, or license to use, conditional or otherwise, in any
manner or by any means whatsoever for a consideration, or any agreement
therefor.
11. "Transferee." The person to whom a taxicab license or interest
therein is transferred, in a transfer as defined in subdivision ten of
this section.
12. "Transferor." The person who transfers a taxicab license or
interest pursuant to this chapter, in a transfer as defined in subdivi-
sion ten of this section.
13. "Tax appeals tribunal." The tax appeals tribunal established by
section one hundred sixty-eight of the charter of the preceding munici-
pality as it existed January first, nineteen hundred ninety-four.
A. 10030 842
§ 11-1402 Imposition of tax. a. On and after March twenty-first,
two thousand seventeen, there is hereby imposed and there shall be paid
a tax on each transfer of a taxicab license or interest therein, at the
rate of one-half percent of the consideration given for such transfer.
b. Where there is a transfer of the economic interest in a taxicab
license or interest therein, effected by the transfer of shares of stock
of a corporation which hold such taxicab license or interest therein or
by the transfer of an interest or interests in a partnership or associ-
ation which holds such taxicab license or interest therein, such trans-
fer of shares of stock or of an interest or interests in a partnership
or association shall be treated as a transfer of the taxicab license or
interest therein, and shall be subject to the tax imposed by subdivision
a of this section.
c. Notwithstanding any other provision of this chapter, the tax
imposed hereby shall not apply to a transfer made pursuant to a bona
fide written contract or agreement made and executed prior to July
first, nineteen hundred eighty, provided such contract or agreement is
registered with the taxi and limousine commission prior to July first,
nineteen hundred eighty, and provided further that one or more payments
were made pursuant to such contract or agreement on or before June twen-
tieth, nineteen hundred eighty.
d. Where a taxicab or any other property is transferred to a trans-
feree in conjunction with the transfer of a taxicab license or interest
therein, the tax imposed by this section shall be computed on the total
consideration for the transfer of such license or interest therein and
the taxicab or other property so transferred, less the fair market value
of such taxicab or other property.
e. The tax imposed by this chapter shall be in addition to any and
all other taxes.
§ 11-1403 Payment of tax. The tax imposed by this chapter shall be
paid by the transferee to the taxi and limousine commission, as agent of
the commissioner of finance, at the time of approval of such transfer by
the taxi and limousine commission, but in no event later than thirty
days following the transfer. The transferor shall also be liable for the
payment of such tax at such time in the event that the amount of tax due
is not paid by the transferee. Notwithstanding any other provision of
law to the contrary, no transfer of a taxicab license or interest there-
in shall be approved or effective until the tax imposed by this chapter
has been paid. All moneys received as such payments by the taxi and
limousine commission during any day shall be transmitted to the commis-
sioner of finance at the close of business on such day or at such other
time as the commissioner of finance may require.
§ 11-1404 Returns. a. A joint return shall be filed by both the
transferee and the transferor. Such return shall be filed at the time of
payment of any tax imposed pursuant to this chapter, and such filing
shall be accomplished by delivering the return to the taxi and limousine
commission for transmittal to the commissioner of finance. The commis-
sioner of finance shall prescribe the form of the return and the infor-
mation which it shall contain. The return shall be signed under oath by
both the transferee and the transferor. Where either the transferee or
the transferor has failed to sign the return, it shall be accepted as a
return, but the party who has failed to sign the return or file a sepa-
rate return shall be subject to the penalties applicable to a person who
has failed to file a return, and the period of limitations for assess-
ment of tax or of additional tax shall not apply to such party.
A. 10030 843
b. Returns shall be preserved for three years and thereafter until the
commissioner of finance permits them to be destroyed.
c. The commissioner of finance may require amended returns to be filed
within twenty days after notice and to contain the information specified
in the notice.
d. If a return required by this chapter is not filed, or if a return,
when filed, is incorrect or insufficient on its face, the commissioner
of finance shall take the necessary steps to enforce the filing of such
a return or of a corrected return.
§ 11-1405 Exemptions. a. The tax imposed under this chapter shall not
be imposed on any transaction by or with the following:
1. The state of New York, or any of its agencies, instrumentalities,
public corporations, including a public corporation created pursuant to
agreement or compact with another state or Canada, or political subdivi-
sions where it is the purchaser, user or consumer;
2. The United States of America, and any of its agencies and instru-
mentalities insofar as it is immune from taxation where it is the
purchaser, user or consumer;
3. The United Nations or other international organizations of which
the United States of America is a member; and
4. Any corporation, or association, or trust, or community chest, fund
or foundation, organized and operated exclusively for religious, chari-
table, or educational purposes, or for the prevention of cruelty to
children or animals, and no part of the net earnings of which inures to
the benefit of any private shareholder or individual, and no substantial
part of the activities of which is carrying on propaganda, or otherwise
attempting to influence legislation; provided, however, that nothing in
this paragraph shall include an organization operated for the primary
purpose of carrying on a trade or business for profit, whether or not
all of its profits are payable to one or more organizations described in
this subdivision.
b. The tax imposed by this chapter shall not apply to the transfer of
a taxicab license or interest therein by means of a lease, license or
other rental arrangement, where the term of such lease, license or other
rental arrangement, including the maximum period for which it can be
extended or renewed, does not exceed six months.
§ 11-1406 Determination of tax. If a return required by this chapter
is not filed, or if a return when filed is incorrect or insufficient,
the amount of tax due shall be determined by the commissioner of finance
from external indices and such other information as may be obtainable.
Notice of such determination shall be given to the person liable for the
tax. Such determination shall finally and irrevocably fix the tax unless
the person against whom it is assessed, within ninety days after the
giving of notice of such determination, or, if the commissioner of
finance has established a conciliation procedure pursuant to section
11-124 of this title and the taxpayer has requested a conciliation
conference in accordance therewith, within ninety days from the mailing
of a conciliation decision or the date of the commissioner's confirma-
tion of the discontinuance of the conciliation proceeding, both (1)
serves a petition upon the commissioner of finance and (2) files a peti-
tion with the tax appeals tribunal for a hearing, or unless the commis-
sioner of finance of his or her own motion shall redetermine the same.
Such hearing and any appeal to the tax appeals tribunal sitting en banc
from the decision rendered in such hearing shall be conducted in the
manner and subject to the requirements prescribed by the tax appeals
tribunal pursuant to sections one hundred sixty-eight through one
A. 10030 844
hundred seventy-two of the charter of the preceding municipality as it
existed January first, nineteen hundred ninety-four. After such hearing
the tax appeals tribunal shall give notice of its decision to the person
against whom the tax is assessed and to the commissioner of finance. A
decision of the tax appeals tribunal sitting en banc shall be reviewable
for error, illegality or unconstitutionality or any other reason whatso-
ever by a proceeding under article seventy-eight of the civil practice
law and rules if application therefor is made to the supreme court by
the person against whom the tax was assessed within four months after
the giving of the notice of such tax appeals tribunal decision. A
proceeding under article seventy-eight of the civil practice law and
rules shall not be instituted by a taxpayer unless: (a) the amount of
any tax sought to be reviewed, with penalties and interest thereon, if
any, shall be first deposited with the commissioner of finance and there
shall be filed with the commissioner of finance an undertaking, issued
by a surety company authorized to transact business in this state and
approved by the superintendent of insurance of this state as to solvency
and responsibility, in such amount and with such sureties as a justice
of the supreme court shall approve, to the effect that if such proceed-
ing be dismissed or the tax confirmed, the taxpayer will pay all costs
and charges which may accrue in the prosecution of the proceeding; or
(b) at the option of the taxpayer such undertaking filed with the
commissioner of finance may be in a sum sufficient to cover the taxes,
penalties and interest thereon stated in such decision plus the costs
and charges which may accrue against it in the prosecution of the
proceeding, in which event the taxpayer shall not be required to deposit
such taxes, penalties and interest as a condition precedent to the
application.
§ 11-1407 Refunds. a. In the manner provided in this section the
commissioner of finance shall refund or credit, without interest, any
tax, penalty or interest erroneously, illegally or unconstitutionally
collected or paid if application to the commissioner of finance for such
refund shall be made within one year from the payment thereof. Whenever
a refund is made or denied by the commissioner of finance, the commis-
sioner shall state his or her reason therefor and give notice thereof to
the taxpayer in writing. Such application may be made by the transferee
or transferor who has actually paid the tax. The commissioner of
finance may, in lieu of any refund required to be made, allow credit
therefor on payments due from the applicant.
b. Any determination of the commissioner of finance denying a refund
or credit pursuant to subdivision a of this section shall be final and
irrevocable unless the applicant for such refund or credit, within nine-
ty days from the mailing of notice of such determination, or, if the
commissioner of finance has established a conciliation procedure pursu-
ant to section 11-124 of this title and the applicant has requested a
conciliation conference in accordance therewith, within ninety days from
the mailing of a conciliation decision or the date of the commissioner's
confirmation of the discontinuance of the conciliation proceeding, both
(1) serves a petition upon the commissioner of finance and (2) files a
petition with the tax appeals tribunal for a hearing. Such petition for
a refund or credit, made pursuant to this section, shall be deemed an
application for a revision of any tax, penalty or interest complained
of. Such hearing and any appeal to the tax appeals tribunal sitting en
banc from the decision rendered in such hearing shall be conducted in
the manner and subject to the requirements prescribed by the tax appeals
tribunal pursuant to sections one hundred sixty-eight through one
A. 10030 845
hundred seventy-two of the charter of the preceding municipality as it
existed January first, nineteen hundred ninety-four. After such hearing,
the tax appeals tribunal shall give notice of its decision to the appli-
cant and to the commissioner of finance. The applicant shall be entitled
to review a decision of the tax appeals tribunal sitting en banc by a
proceeding pursuant to article seventy-eight of the civil practice law
and rules, provided such proceeding is instituted within four months
after the giving of notice of such decision, and provided, in the case
of an application by a taxpayer, that a final determination of tax due
was not previously made. Such a proceeding shall not be instituted by a
taxpayer unless an undertaking is filed with the commissioner of finance
in such amount and with such sureties as a justice of the supreme court
shall approve to the effect that if such proceeding be dismissed or the
tax confirmed, the taxpayer will pay all costs and charges which may
accrue in the prosecution of such proceeding.
c. A person shall not be entitled to a revision, refund or credit
under this section of a tax, or penalty which had been determined to be
due pursuant to the provisions of section 11-1406 of this chapter where
such person has had a hearing or an opportunity for a hearing, as
provided in said section, or has failed to avail himself or herself of
the remedies therein provided. No refund or credit shall be made of a
tax, interest or penalty paid after a determination by the commissioner
of finance made pursuant to section 11-1406 of this chapter unless it be
found that such determination was erroneous, illegal or unconstitutional
or otherwise improper, by the tax appeals tribunal after a hearing, or
on the commissioner's own motion, or, is such tax appeals tribunal
affirms in whole or in part the determination of the commissioner of
finance, in a proceeding under article seventy-eight of the civil prac-
tice law and rules, pursuant to the provisions of said section, in which
event refund or credit without interest shall be made of the tax, inter-
est or penalty found to be overpaid.
§ 11-1408 Reserves. In cases where the transferee or transferor has
applied for a refund and has instituted a proceeding under article
seventy-eight of the civil practice law and rules to review a determi-
nation adverse to the transferee or transferor on his or her application
for refund, the comptroller shall set up appropriate reserves to meet
any decisions adverse to the city.
§ 11-1409 Remedies exclusive. The remedies provided by sections
11-1406 and 11-1407 of this chapter shall be the exclusive remedies
available to any person for the review of tax liability imposed by this
chapter; and no determination or proposed determination of tax or deter-
mination on any application for refund by the commissioner of finance,
nor any decision by the tax appeals tribunal or any of its administra-
tive law judges shall be enjoined or reviewed by an action for declara-
tory judgment, an action for money had and received or by any action or
proceeding other than, in the case of a decision by the tax appeals
tribunal sitting en banc, a proceeding in the nature of a certiorari
proceeding under article seventy-eight of the civil practice law and
rules; provided, however, that a taxpayer may proceed by declaratory
judgment if the taxpayer institutes suit within thirty days after a
deficiency assessment is made and pays the amount of the deficiency
assessment to the commissioner of finance prior to the institution of
such suit and posts a bond for costs as provided in section 11-1406 of
this chapter.
§ 11-1410 Proceedings to recover tax. a. Whenever any transferee or
transferor shall fail to pay any tax, penalty or interest imposed by
A. 10030 846
this chapter as herein provided, the corporation counsel shall, upon the
request of the commissioner of finance bring or cause to be brought an
action to enforce the payment of the same on behalf of the city of
Staten Island in any court of the state of New York or of any other
state or of the United States. If, however, the commissioner of finance
in his or her discretion believes that any such transferee or transferor
subject to the provisions of this chapter is about to cease business,
leave the state or remove or dissipate the assets out of which the tax
or penalty might be satisfied, and that any such tax or penalty will not
be paid when due, the commissioner may declare such tax or penalty to be
immediately due and payable and may issue a warrant immediately.
b. As an additional or alternate remedy, the commissioner of finance
may issue a warrant, directed to the city sheriff commanding the sheriff
to levy upon and sell the real and personal property of the transferee
or transferor or other person liable for the tax which may be found
within the city, for the payment of the amount thereof, with any penalty
and interest, and the cost of executing the warrant, and to return such
warrant to the commissioner of finance and to pay to the commissioner
the money collected by virtue thereof within sixty days after the
receipt of such warrant. The city sheriff shall within five days after
the receipt of the warrant file with the county clerk a copy thereof,
and thereupon such clerk shall enter in the judgment docket the name of
the person mentioned in the warrant and the amount of the tax, penalty
and interest for which the warrant is issued and the date when such copy
is filed. Thereupon the amount of such warrant so docketed shall become
a lien upon the title to and the interest in real and personal property
of the person against whom the warrant is issued. The city sheriff shall
then proceed upon the warrant in the same manner, and with like effect,
as that provided by law in respect to executions issued against property
upon judgments of a court of record and for services in executing the
warrant the sheriff shall be entitled to the same fees, which he or she
may collect in the same manner. In the discretion of the commissioner of
finance a warrant of like terms, force and effect may be issued and
directed to an officer or employee of the department of finance, and in
the execution thereof such officer or employee shall have all the powers
conferred by law upon sheriffs, but shall be entitled to no fee or
compensation in excess of the actual expenses paid in the performance of
such duty. If a warrant is returned not satisfied in full, the commis-
sioner of finance may from time to time issue new warrants and shall
also have the same remedies to enforce the amount due thereunder as if
the city had recovered judgment therefor and execution thereon had been
returned unsatisfied.
c. Whenever there is made a sale, transfer or assignment in bulk or
any part of the whole of a stock of merchandise or of fixtures, or
merchandise and of fixtures pertaining to the conducting of the business
of the seller, transferor or assignor, otherwise than in the ordinary
course of trade and in the regular prosecution of said business, the
purchaser, transferee or assignee shall at least ten days before taking
possession of such merchandise, fixtures, or merchandise and fixtures,
or paying therefor, notify the commissioner of finance by registered
mail of the proposed sale and of the price, terms and conditions thereof
whether or not the seller, transferor or assignor, has represented to,
or informed the purchaser, transferee or assignee that it owes any tax
pursuant to this chapter and whether or not the purchaser, transferee or
assignee has knowledge that such taxes are owing, and whether any such
taxes are in fact owing.
A. 10030 847
d. Whenever, the purchaser, transferee or assignee shall fail to give
notice to the commissioner of finance as required by subdivision c of
this section, or whenever the commissioner of finance shall inform the
purchaser, transferee or assignee that a possible claim for such tax or
taxes exists, any sums of money, property or choses in action, or other
consideration, which the purchaser, transferee or assignee is required
to transfer over to the seller or assignor shall be subject to a first
priority right and lien for any such taxes theretofore or thereafter
determined to be due from the seller, transferor or assignor to the
city, and the purchaser, transferee or assignee is forbidden to transfer
to the seller, transferor or assignor any such sums of money, property
or choses in action to the extent of the amount of the city's claim. For
failure to comply with the provisions of this subdivision, the purchas-
er, transferee or assignee shall be personally liable for the payment to
the city of any such taxes theretofore or thereafter determined to be
due to the city from the seller, transferor or assignor, and such
liability may be assessed and enforced in the same manner as the liabil-
ity for tax under this chapter.
e. The commissioner of finance, if he or she finds that the interests
of the city will not thereby be jeopardized, and upon such conditions as
the commissioner of finance may require, may release any property from
the lien of any warrant or vacate such warrant for unpaid taxes, addi-
tions to tax, penalties and interest filed pursuant to subdivision b of
this section, and such release or vacating of the warrant may be
recorded in the office of any recording officer in which such warrant
has been filed. The clerk shall thereupon cancel and discharge as of the
original date of docketing the vacated warrant.
§ 11-1411 General powers of the commissioner of finance. In addition
to the powers granted to the commissioner of finance in this chapter, he
or she is hereby authorized and empowered:
1. To make, adopt and amend rules and regulations appropriate to the
carrying out of this chapter and the purposes thereof;
2. To extend, for cause shown, the time for filing any return for a
period not exceeding ninety days; and to compromise disputed claims in
connection with the taxes imposed under this chapter;
3. To request information from the taxi and limousine commission, the
tax commission of the state of New York or the treasury department of
the United States relative to any person; and to afford returns, reports
and other information to such taxi and limousine commission, tax commis-
sion or treasury department relative to any person, any other provision
of this chapter to the contrary notwithstanding;
4. To delegate his or her functions hereunder to a deputy commissioner
of finance or any employee or employees of the department of finance;
5. To prescribe the methods for determining the consideration subject
to the tax, and if there is a transfer of a taxicab or other property in
conjunction with the transfer of a taxicab license or interest therein,
to prescribe rules and methods for determining the fair market value of
such taxicab or other property;
6. To require any transferee or transferor to keep such records, and
for such lengths of time as may be required for the proper adminis-
tration of this chapter and to furnish such records to the commissioner
of finance or the taxi and limousine commission upon request;
7. To assess, determine, revise and adjust the taxes imposed under
this chapter.
§ 11-1412 Administration of oaths and compelling testimony. a. The
commissioner of finance, the employees or agents duly designated by him
A. 10030 848
or her, the tax appeals tribunal and any of its duly designated and
authorized employees or agents shall have power to administer oaths and
take affidavits in relation to any matter or proceeding in the exercise
of their powers and duties under this chapter. The commissioner of
finance and the tax appeals tribunal shall have power to subpoena and
require the attendance of witnesses and the production of books, papers
and documents to secure information pertinent to the performance of the
duties of the commissioner or of the tax appeals tribunal hereunder and
of the enforcement of this chapter and to examine them in relation ther-
eto, and to issue commissions for the examination of witnesses who are
out of the state or unable to attend before the commissioner or the tax
appeals tribunal or excused from attendance.
b. A justice of the supreme court either in court or at chambers shall
have power summarily to enforce by proper proceedings the attendance and
testimony of witnesses and the production and examination of books,
papers and documents called for by the subpoena of the commissioner of
finance or the tax appeals tribunal under this chapter.
c. Cross-reference; criminal penalties. For failure to obey subpoenas
or for testifying falsely, see section 11-4007 of this title; for
supplying false or fraudulent information, see section 11-4009 of this
title.
d. The officers who serve the summons or subpoena of the commissioner
of finance or the tax appeals tribunal and witnesses attending in
response thereto shall be entitled to the same fees as are allowed to
officers and witnesses in civil cases in courts of record, except as
herein otherwise provided. Such officers shall be the city sheriff and
his or her duly appointed deputies or any officers or employees of the
department of finance or the tax appeals tribunal, designated to serve
such process.
§ 11-1413 Interest and penalties. (a) Interest on underpayments. If
any amount of tax is not paid on or before the last date prescribed for
payment, without regard to any extension of time granted for payment,
interest on such amount at the rate set by the commissioner of finance
pursuant to subdivision (g) of this section, or, if no rate is set, at
the rate of seven and one-half percent per annum, shall be paid for the
period from such last date to the date of payment. In computing the
amount of interest to be paid, such interest shall be compounded daily.
Interest under this subdivision shall not be paid if the amount thereof
is less than one dollar.
(b) (1) Failure to file return. (A) In case of failure to file a
return under this chapter on or before the prescribed date, determined
with regard to any extension of time for filing, unless it is shown that
such failure is due to reasonable cause and not due to willful neglect,
there shall be added to the amount required to be shown as tax on such
return five percent of the amount of such tax if the failure is for not
more than one month, with an additional five percent for each additional
month or fraction thereof during which such failure continues, not
exceeding twenty-five percent in the aggregate.
(B) In the case of a failure to file a return of tax within sixty days
of the date prescribed for filing of such return, determined with regard
to any extension of time for filing, unless it is shown that such fail-
ure is due to reasonable cause and not due to willful neglect, the addi-
tion to tax under subparagraph (A) of this paragraph shall not be less
than the lesser of one hundred dollars or one hundred percent of the
amount required to be shown as tax on such return.
A. 10030 849
(C) For purposes of this paragraph, the amount of tax required to be
shown on the return shall be reduced by the amount of any part of the
tax which is paid on or before the date prescribed for payment of the
tax and by the amount of any credit against the tax which may be claimed
upon the return.
(2) Failure to pay tax shown on return. In case of failure to pay the
amount shown as tax on a return required to be filed under this chapter
on or before the prescribed date, determined with regard to any exten-
sion of time for payment, unless it is shown that such failure is due to
reasonable cause and not due to willful neglect, there shall be added to
the amount shown as tax on such return one-half of one percent of the
amount of such tax if the failure is not for more than one month, with
an additional one-half of one percent for each additional month or frac-
tion thereof during which such failure continues, not exceeding twenty-
five percent in the aggregate. For the purpose of computing the addition
for any month the amount of tax shown on the return shall be reduced by
the amount of any part of the tax which is paid on or before the begin-
ning of such month and by the amount of any credit against the tax which
may be claimed upon the return. If the amount of tax required to be
shown on a return is less than the amount shown as tax on such return,
this paragraph shall be applied by substituting such lower amount.
(3) Failure to pay tax required to be shown on return. In case of
failure to pay any amount in respect of any tax required to be shown on
a return required to be filed under this chapter which is not so shown,
including a determination made pursuant to section 11-1406 of this chap-
ter, within ten days of the date of a notice and demand therefor, unless
it is shown that such failure is due to reasonable cause and not due to
willful neglect, there shall be added to the amount of tax stated in
such notice and demand one-half of one percent of such tax if the fail-
ure is not for more than one month, with an additional one-half of one
percent for each additional month or fraction thereof during which such
failure continues, not exceeding twenty-five percent in the aggregate.
For the purpose of computing the addition for any month, the amount of
tax stated in the notice and demand shall be reduced by the amount of
any part of the tax which is paid before the beginning of such month.
(4) Limitations on additions.
(A) With respect to any return, the amount of the addition under para-
graph one of this subdivision shall be reduced by the amount of the
addition under paragraph two of this subdivision for any month to which
an addition applies under both paragraphs one and two. In any case
described in subparagraph (B) of paragraph one of this subdivision, the
amount of the addition under such paragraph one shall not be reduced
below the amount provided in such subparagraph.
(B) With respect to any return, the maximum amount of the addition
permitted under paragraph three of this subdivision shall be reduced by
the amount of the addition under paragraph one of this subdivision,
determined without regard to subparagraph (B) of such paragraph one,
which is attributable to the tax for which the notice and demand is made
and which is not paid within ten days of such notice and demand.
(c) Underpayment due to negligence. (1) If any part of an underpay-
ment of tax is due to negligence or intentional disregard of this chap-
ter or any rules or regulations hereunder, but without intent to
defraud, there shall be added to the tax a penalty equal to five percent
of the underpayment.
(2) There shall be added to the tax, in addition to the amount deter-
mined under paragraph one of this subdivision, an amount equal to fifty
A. 10030 850
percent of the interest payable under subdivision (a) of this section
with respect to the portion of the underpayment described in such para-
graph one which is attributable to the negligence or intentional disre-
gard referred to in such paragraph one, for the period beginning on the
last date prescribed by law for payment of such underpayment, determined
without regard to any extension, and ending on the date of the assess-
ment of the tax, or, if earlier, the date of the payment of the tax.
(d) Underpayment due to fraud. (1) If any part of an underpayment of
tax is due to fraud, there shall be added to the tax a penalty equal to
fifty percent of the underpayment.
(2) There shall be added to the tax, in addition to the penalty deter-
mined under paragraph one of this subdivision, an amount equal to fifty
percent of the interest payable under subdivision (a) of this section
with respect to the portion of the underpayment described in such para-
graph one which is attributable to fraud, for the period beginning on
the last day prescribed by law for payment of such underpayment, deter-
mined without regard to any extension, and ending on the date of the
assessment of the tax, or, if earlier, the date of the payment of the
tax.
(3) The penalty under this subdivision shall be in lieu of any other
addition to tax imposed by subdivision (b) or (c) of this section.
(e) Additional penalty. Any person who, with fraudulent intent, shall
fail to pay any tax imposed by this chapter, or to make, render, sign or
certify any return, or to supply any information within the time
required by or under this chapter, shall be liable for a penalty of not
more than one thousand dollars, in addition to any other amounts
required under this chapter to be imposed, assessed and collected by the
commissioner of finance. The commissioner of finance shall have the
power, in his or her discretion, to waive, reduce or compromise any
penalty under this subdivision.
(f) The interest and penalties imposed by this section shall be paid
and disposed of in the same manner as other revenues from this chapter.
Unpaid interest and penalties may be enforced in the same manner as the
tax imposed by this chapter.
(g)(1) Authority to set interest rates. The commissioner of finance
shall set the rate of interest to be paid pursuant to subdivision (a) of
this section, but if no such rate of interest is set, such rate shall be
deemed to be set at seven and one-half percent per annum. Such rate
shall be the rate prescribed in paragraph two of this subdivision but
shall not be less than seven and one-half percent per annum. Any such
rate set by the commissioner of finance shall apply to taxes, or any
portion thereof, which remain or become due on or after the date on
which such rate becomes effective and shall apply only with respect to
interest computed or computable for periods or portions of periods
occurring in the period in which such rate is in effect.
(2) General rule. The rate of interest set under this subdivision
shall be the sum of (i) the federal short-term rate as provided under
paragraph three of this subdivision, plus (ii) seven percentage points.
(3) Federal short-term rate. For purposes of this subdivision:
(A) The federal short-term rate for any month shall be the federal
short-term rate determined by the United States secretary of the treas-
ury during such month in accordance with subsection (d) of section
twelve hundred seventy-four of the internal revenue code for use in
connection with section six thousand six hundred twenty-one of the
internal revenue code. Any such rate shall be rounded to the nearest
A. 10030 851
full percent, or, if a multiple of one-half of one percent, such rate
shall be increased to the next highest full percent.
(B) Period during which rate applies.
(i) In general. Except as provided in clause (ii) of this subpara-
graph, the federal short-term rate for the first month in each calendar
quarter shall apply during the first calendar quarter beginning after
such month.
(ii) Special rule for the month of September, nineteen hundred eight-
y-nine. The federal short-term rate for the month of April, nineteen
hundred eighty-nine shall apply with respect to setting the rate of
interest for the month of September, nineteen hundred eighty-nine.
(4) Publication of interest rate. The commissioner of finance shall
cause to be published in the City Record, and give other appropriate
general notice of, the interest rate to be set under this subdivision no
later than twenty days preceding the first day of the calendar quarter
during which such interest rate applies. The setting and publication of
such interest rate shall not be included within paragraph (a) of subdi-
vision five of section one thousand forty-one of the charter of the
preceding municipality as it existed January first, nineteen hundred
ninety-four relating to the definition of a rule.
(h) Miscellaneous. (1) The certificate of the commissioner of finance
to the effect that a tax has not been paid or that information has not
been supplied pursuant to the provisions of this chapter shall be
presumptive evidence thereof.
(2) Cross-reference: For criminal penalties, see chapter forty of this
title.
§ 11-1414 Returns to be secret. a. Except in accordance with proper
judicial order or as otherwise provided by law, it shall be unlawful for
the commissioner of finance, the chairperson of the taxi and limousine
commission, the tax appeals tribunal or any officer or employee of the
department of finance or taxi and limousine commission or the tax
appeals tribunal, to divulge or make known in any manner any information
contained in or relating to any return provided for by this chapter. The
officers charged with the custody of such returns shall not be required
to produce any of them or evidence of anything contained in them in any
action or proceeding in any court, except on behalf of the commissioner
of finance in an action or proceeding under the provisions of this chap-
ter, or on behalf of any party to an action or proceeding under the
provisions of this chapter when the returns or facts shown thereby are
directly involved in such action or proceeding, in either of which
events the court may require the production of, and may admit in
evidence, so much of said returns or of the facts shown thereby, as are
pertinent to the action or proceeding and no more. Nothing in this
section shall be construed to prohibit the delivery to a transferee or
transferor or to the duly authorized representative of either of them of
a certified copy of any return filed in connection with the tax imposed
by this chapter; nor to prohibit the delivery of such a certified copy
of such return or of any information contained in or relating thereto to
the United States of America or any department thereof, the state of New
York or any department thereof, the city of Staten Island or any depart-
ment thereof provided the same is required for official business; nor to
prohibit the inspection for official business of such returns by the
chairperson of the taxi and limousine commission, the corporation coun-
sel or other legal representatives of the city or by the district attor-
ney of Richmond county; nor to prohibit the publication of statistics so
A. 10030 852
classified as to prevent the identification of particular returns or
items thereof.
b. (1) Any officer or employee of the city who willfully violates the
provisions of subdivision a of this section shall be dismissed from
office and be incapable of holding any public office in this city for a
period of five years thereafter.
(2) Cross-reference: For criminal penalties, see chapter forty of this
title.
c. This section shall be deemed a state statute for purposes of para-
graph (a) of subdivision two of section eighty-seven of the public offi-
cers law.
d. Notwithstanding anything in subdivision a of this section to the
contrary, if a taxpayer has petitioned the tax appeals tribunal for
administrative review as provided in section one hundred seventy of the
charter of the preceding municipality as it existed January first, nine-
teen hundred ninety-four, the commissioner of finance shall be author-
ized to present to the tribunal any report or return of such taxpayer,
or any information contained therein or relating thereto, which may be
material or relevant to the proceeding before the tribunal. The tax
appeals tribunal shall be authorized to publish a copy or a summary of
any decision rendered pursuant to section one hundred seventy-one of the
charter of the preceding municipality as it existed January first, nine-
teen hundred ninety-four.
§ 11-1415 Notices and limitations of time. a. Any notice authorized
or required under the provisions of this chapter may be given by mailing
the same to the person for whom it is intended in a postpaid envelope
addressed to such person at the address given in the last return filed
by such person pursuant to the provisions of this chapter, in any appli-
cation made by such person, or in the records maintained by the taxi and
limousine commission, or, if no return has been filed or application
made or address found in the records of the taxi and limousine commis-
sion, then to such address as may be obtainable. The mailing of such
notice shall be presumptive evidence of the receipt of the same by the
person to whom addressed. Any period of time which is determined accord-
ing to the provisions of this chapter by the giving of notice shall
commence to run from the date of mailing of such notice.
b. The provisions of the civil practice law and rules or any other law
relative to limitations of time for the enforcement of a civil remedy
shall not apply to any proceeding or action taken by the city to levy,
appraise, assess, determine or enforce the collection of any tax or
penalty provided by this chapter. However, except in the case of a
wilfully false or fraudulent return with intent to evade the tax, no
assessment of additional tax shall be made after the expiration of more
than three years from the date of the filing of a return; provided,
however, that where no return has been filed as provided by law the tax
may be assessed at any time.
c. Where, before the expiration of the period prescribed herein for
the assessment of an additional tax, a taxpayer has consented in writing
that such period be extended, the amount of such additional tax due may
be determined at any time within such extended period. The period so
extended may be further extended by subsequent consents in writing made
before the expiration of the extended period.
d. If any return, claim, statement, notice, application, or other
document required to be filed, or any payment required to be made, with-
in a prescribed period or on or before a prescribed date under authority
of any provision of this chapter is, after such period or such date,
A. 10030 853
delivered by United States mail to the commissioner of finance, the tax
appeals tribunal, bureau, office, officer or person with which or with
whom such document is required to be filed, or to which or to whom such
payment is required to be made, the date of the United States postmark
stamped on the envelope shall be deemed to be the date of delivery. This
subdivision shall apply only if the postmark date falls within the
prescribed period or on or before the prescribed date for the filing of
such document, or for making the payment, including any extension grant-
ed for such filing or payment, and only if such document or payment was
deposited in the mail, postage prepaid, properly addressed to the
commissioner of finance, the tax appeals tribunal, bureau, office, offi-
cer or person with which or with whom the document is required to be
filed or to which or to whom such payment is required to be made. If any
document is sent by United States registered mail, such registration
shall be prima facie evidence that such document was delivered to the
commissioner of finance, the tax appeals tribunal, bureau, office, offi-
cer or person to which or to whom addressed, and the date of registra-
tion shall be deemed the postmark date. The commissioner of finance and,
where relevant, the tax appeals tribunal are authorized to provide by
regulation the extent to which such provisions with respect to prima
facie evidence of delivery and the postmark date shall apply to certi-
fied mail. Except as provided in subdivision f of this section, this
subdivision shall apply in the case of postmarks not made by the United
States postal service only if and to the extent provided by regulation
of the commissioner of finance or, where relevant, the tax appeals
tribunal.
e. When the last day prescribed under authority of this chapter,
including any extension of time, for performing any act falls on a
Saturday, Sunday or legal holiday in the state, the performance of such
act shall be considered timely if it is performed on the next succeeding
day which is not a Saturday, Sunday or legal holiday.
f. (1) Any reference in subdivision d of this section to the United
States mail shall be treated as including a reference to any delivery
service designated by the secretary of the treasury of the United States
pursuant to section seventy-five hundred two of the internal revenue
code and any reference in subdivision d of this section to a United
States postmark shall be treated as including a reference to any date
recorded or marked in the manner described in section seventy-five
hundred two of the internal revenue code by a designated delivery
service. If the commissioner of finance finds that any delivery service
designated by such secretary is inadequate for the needs of the city,
the commissioner of finance may withdraw such designation for purposes
of this title. The commissioner of finance may also designate additional
delivery services meeting the criteria of section seventy-five hundred
two of the internal revenue code for purposes of this title, or may
withdraw any such designation if the commissioner of finance finds that
a delivery service so designated is inadequate for the needs of the
city. Any reference in subdivision d of this section to the United
States mail shall be treated as including a reference to any delivery
service designated by the commissioner of finance and any reference in
subdivision d of this section to a United States postmark shall be
treated as including a reference to any date recorded or marked in the
manner described in section seventy-five hundred two of the internal
revenue code by a delivery service designated by the commissioner of
finance, provided, however, any withdrawal of designation or additional
designation by the commissioner of finance shall not be effective for
A. 10030 854
purposes of service upon the tax appeals tribunal, unless and until such
withdrawal of designation or additional designation is ratified by the
president of the tax appeals tribunal.
(2) Any equivalent of registered or certified mail designated by the
United States secretary of the treasury, or as may be designated by the
commissioner of finance pursuant to the same criteria used by such
secretary for such designations pursuant to section seventy-five hundred
two of the internal revenue code, shall be included within the meaning
of registered or certified mail as used in subdivision d of this
section. If the commissioner of finance finds that any equivalent of
registered or certified mail designated by such secretary or the commis-
sioner of finance is inadequate for the needs of the city, the commis-
sioner of finance may withdraw such designation for purposes of this
title, provided, however, any withdrawal of designation or additional
designation by the commissioner of finance shall not be effective for
purposes of service upon the tax appeals tribunal, unless and until such
withdrawal of designation or additional designation is ratified by the
president of the tax appeals tribunal.
§ 11-1416 Construction and enforcement. This chapter shall be
construed and enforced in conformity with subdivision (j) of section
twelve hundred one of the tax law.
§ 11-1417 Disposition of revenues. All revenues resulting from the
imposition of the tax under this chapter shall be paid into the treasury
of the city and shall be credited to and deposited in the general fund
of the city, but no part of such revenue may be expended unless appro-
priated in the annual budget of the city.
CHAPTER 16
TAX ON CONTAINERS
§ 11-1601 Definitions. When used in this chapter, the following terms
shall mean and include:
1. "Person." An individual, partnership, society, association, joint-
stock company, corporation, estate, receiver, trustee, assignee, refer-
ee, or any other person acting in a fiduciary or representative capaci-
ty, whether appointed by a court or otherwise and any combination
thereof.
2. "Container." Any article, thing or contrivance made in whole or in
part of rigid or semi-rigid plastic, including, but not limited to,
barrels, baskets, bottles, boxes, cartons, carrying cases, crates, cups,
cylinders, drums, jars, jugs, pails, pots, trays, tubs, tubes, tumblers,
and vessels, intended for use in packing or packaging any product
intended for sale:
(a) Metal containers and paperboard or fiber containers which have
been impregnated, lined or coated with plastic or other materials shall
be considered to be classified as metal containers and paperboard
containers, respectively;
(b) Paperboard or fiber containers with fastenings, tops or bottoms
made of plastic shall be classified as paperboard or fiber containers;
(c) Plastic caps that are easily, readily, usually, and customarily
separated from the container before disposal shall not be considered
part of the container.
3. "Recycled material." Component materials which have been derived
from previously used material or from new or old scrap material.
4. "Taxable period." Such calendar period prescribed for filing
returns by this chapter or by the commissioner of finance.
A. 10030 855
5. "Retail sale" or "sale at retail." A sale to any person for any
purpose other than for resale as such or as a physical component part of
tangible personal property.
6. "Sale." The sale or furnishing of a container by a seller or
supplier to a retailer.
7. "Seller or supplier." Any person who sells containers to a retail-
er.
8. "Retailer." Any person who purchases containers, whether filled or
unfilled, for the purpose of using them in connection with and as part
of sales at retail or who receives them as containers of products
intended for sale at retail.
9. "City." The city of Staten Island.
10. "Commissioner of finance." The commissioner of finance of the
city.
11. "Comptroller." The comptroller of the city.
§ 11-1602 General powers of the commissioner of finance. In addi-
tion to the powers granted to the commissioner of finance in this chap-
ter, the commissioner is hereby authorized and empowered:
1. To make, adopt and amend rules and regulations appropriate to the
carrying chapter and the purposes thereof;
2. To extend, for cause shown, the time of filing any return for a
period not exceeding thirty days; and for cause shown, to remit penal-
ties but not interest computed at the rate of six per cent per annum;
and to compromise disputed claims in connection with the taxes hereby
imposed;
3. To request information from the tax commission of the state of New
York or the treasury department of the United States relative to any
person; and to afford information to such tax commission or such treas-
ury department relative to any person, any other provision of this chap-
ter to the contrary notwithstanding;
4. To delegate the commissioner's functions under this section to an
assistant commissioner or deputy commissioner in the department of
finance or to any employee or employees of the commissioner of finance;
5. To prescribe methods for determining the containers sold or
supplied or purchased and to determine which are taxable and nontaxable;
6. To require sellers and suppliers and retailers within the city to
keep detailed records with respect to containers bought, sold, used,
manufactured or produced, and stock and production records with respect
to such containers whether or not subject to the tax imposed by this
chapter, and to furnish any information with respect thereto upon
request to the commissioner of finance;
7. To assess, determine, revise and readjust the taxes imposed under
this chapter.
§ 11-1603 Administration of oaths and compelling testimony. a. The
commissioner of finance or the commissioner's employees or agents duly
designated and authorized by the commissioner shall have power to admin-
ister oaths and take affidavits in relation to any matter or proceeding
in the exercise of their powers and duties under this chapter. The
commissioner of finance shall have power to subpoena and require the
attendance of witnesses and the production of books, papers and docu-
ments to secure information pertinent to the performance of the commis-
sioner's duties hereunder and of the enforcement of this chapter and to
examine them in relation thereto, and to issue commissions for the exam-
ination of witnesses who are out of the state or unable to attend before
the commissioner or excused from attendance.
A. 10030 856
b. A justice of the supreme court either in court or at chambers shall
have power summarily to enforce by proper proceedings the attendance and
testimony of witnesses and the production and examination of books,
papers and documents called for by the subpoena of the commissioner of
finance under this chapter.
c. Any person who shall refuse to testify or to produce books or
records or who shall testify falsely in any material matter pending
before the commissioner of finance under this chapter shall be guilty of
a misdemeanor, punishment for which shall be a fine of not more than one
thousand dollars or imprisonment for not more than one year, or both
such fine and imprisonment.
d. The officers who serve the summons or subpoena of the commissioner
of finance and witnesses attending in response thereto shall be entitled
to the same fees as are allowed to officers and witnesses in civil cases
in courts of record, except as otherwise provided. Such officers shall
be the city sheriff and the city sheriff's duly appointed deputies or
any officers or employees of the commissioner of finance, designated to
serve such process.
§ 11-1604 Imposition of tax. 1. On and after July first, nineteen
hundred seventy-one, there is hereby imposed within the city and there
shall be paid a tax upon every sale of a plastic container at the rate
of two cents for each container sold.
2. A credit shall be allowed against the taxes imposed by this chap-
ter of one cent for each taxable container if manufactured with a mini-
mum of thirty percent of recycled material.
§ 11-1605 Presumptions and burden of proof. For the purpose of
proper administration of this chapter and to prevent evasion of the tax
hereby imposed, it shall be presumed that all sales of plastic contain-
ers are taxable, and not entitled to any credit allowed against the
taxes imposed. Such presumptions shall prevail until the contrary is
established and the burden of proving the contrary shall be upon the
taxpayer.
§ 11-1606 Payment of the tax. The tax imposed pursuant to this
chapter shall be paid by the seller or supplier. However, where the tax
has not been paid on a sale by such seller or supplier, the retailer
shall be liable for tax thereon upon purchasing the container. Should
sellers and suppliers having no business situs in the city, who sell
containers to retailers within the city, pay the tax, the retailer
purchasing the containers shall not be liable for the tax.
§ 11-1607 Records to be kept. Every seller or supplier and every
retailer shall keep records of all plastic containers taxed pursuant to
this chapter and of all purchases and sales thereof and of the taxes due
and payable on the sale or on the purchase thereof, in such form as the
commissioner of finance may by regulation require. Such records shall
be available for inspection and examination at any time upon demand by
the commissioner of finance or the commissioner's duly authorized agent
or employee and shall be preserved for a period of three years, except
that the commissioner of finance may consent to their destruction within
that period or may require that they be kept longer.
§ 11-1608 Exemptions. 1. The following shall be exempt from the
payment of the tax imposed by this chapter:
(a) The state of New York, or any of its agencies, instrumentalities,
public corporations, including a public corporation created pursuant to
agreement or compact with another state or Canada, or political subdivi-
sions where it is the purchaser, user or consumer;
A. 10030 857
(b) The United States of America, and any of its agencies and instru-
mentalities insofar as it is immune from taxation where it is the
purchaser, user or consumer;
(c) The United Nations or other international organizations of which
the United States of America is a member; and
(d) Any corporation, or association, or trust, or community chest,
fund or foundation, organized and operated exclusively for religious,
charitable, or educational purposes, or for the prevention of cruelty to
children or animals, and no part of the net earnings of which inures to
the benefit of any private shareholder or individual, and no substantial
part of the activities of which is carrying on propaganda, or otherwise
attempting to influence legislation; provided, however, that nothing in
this paragraph shall include an organization operated for the primary
purpose of carrying on a trade or business for profit, whether or not
all of its profits are payable to one or more organizations described in
this paragraph.
2. The following containers shall be exempt from the tax imposed by
this chapter: a. Containers sold or furnished containing products
intended for use in manufacturing processes and not for final retail
sale.
b. Containers used as receptacles for food, food products, beverages,
dietary foods and health supplements, sold for human consumption but not
including: (i) candy and confectionery, (ii) fruit drinks which contain
less than seventy percent of natural fruit juice, (iii) soft drinks,
sodas and beverages such as are ordinarily dispensed at soda fountains
or in connection therewith, other than coffee, tea and cocoa, and (iv)
beer, wine or other alcoholic beverages.
§ 11-1609 Returns. 1. Every seller or supplier shall file with the
commissioner of finance a return of containers sold and of the taxes due
and payable thereon for the period from July first, nineteen hundred
seventy-one until the last day of September, nineteen hundred seventy-
one and thereafter for each of the four-monthly periods ending on the
last day of January, May and September of each year.
2. Every retailer shall file with the commissioner of finance a
return of containers purchased by such retailer from sellers or suppli-
ers having no situs within the city and of the taxes due thereon for the
same periods provided in subdivision one of this section.
3. The returns shall be filed within twenty days after the end of the
periods covered thereby. The commissioner of finance may permit or
require returns to be made for other periods and upon such dates as the
commissioner may specify. If the commissioner of finance deems it
necessary in order to insure the payment of the tax imposed by this
chapter, the commissioner may require returns to be made for shorter
periods than those prescribed pursuant to the provisions of this subdi-
vision and upon such dates as he or she may specify.
4. The forms of returns shall be prescribed by the commissioner of
finance and shall contain such information as the commissioner may deem
necessary for the proper administration of this chapter. The commis-
sioner of finance may require amended returns to be filed within twenty
days after notice and to contain the information specified in the
notice.
5. If a return required by this chapter is not filed or if a return
when filed is incorrect or insufficient on its face the commissioner of
finance shall take the necessary steps to enforce the filing of such a
return or a corrected return.
A. 10030 858
§ 11-1610 Determination of tax. If a return required by this chapter
is not filed, or if a return when filed is incorrect or insufficient,
the amount of tax due shall be determined by the commissioner of finance
from such information as may be obtainable and, if necessary, the tax
may be estimated on the basis of external indices, such as volume of
sales, inventories, purchases of containers, or of raw materials,
production figures, or other factors. Notice of such determination shall
be given to the person liable for the collection or payment of the tax.
Such determination shall finally and irrevocably fix the tax unless the
person against whom it is assessed, within thirty days after giving
notice of such determination, shall apply to the commissioner of finance
for a hearing, or unless the commissioner of finance of his or her own
motion shall redetermine the same. After such hearing the commissioner
of finance shall give notice of his or her determination to the person
against whom the tax is assessed. The determination of the commissioner
of finance shall be reviewable for error, illegality or unconstitution-
ality or any other reason whatsoever by a proceeding under article
seventy-eight of the civil practice law and rules if application there-
for is made to the supreme court within four months after the giving of
the notice of such determination. A proceeding under article seventy-
eight of the civil practice law and rules shall not be instituted
unless: (a) the amount of any tax sought to be reviewed, with penalties
and interest thereon, if any, shall be first deposited with the commis-
sioner of finance and there shall be filed with the commissioner of
finance an undertaking, issued by a surety company authorized to trans-
act business in this state and approved by the superintendent of insur-
ance of this state as to solvency and responsibility, in such amount as
a justice of the supreme court shall approve to the effect that if such
proceeding be dismissed or the tax confirmed, the petitioner will pay
all costs and charges which may accrue in the prosecution of the
proceeding; or (b) at the option of the applicant such undertaking filed
with the commissioner of finance may be in a sum sufficient to cover the
taxes, penalties and interest thereon stated in such determination plus
the costs and charges which may accrue against it in the prosecution of
the proceeding, in which event the applicant shall not be required to
deposit such taxes, penalties and interest as a condition precedent to
the application.
§ 11-1611 Refunds. a. In the manner provided in this section the
commissioner of finance shall refund or credit, without interest, any
tax, penalty or interest erroneously, illegally or unconstitutionally
collected or paid if application to the commissioner of finance for such
refund shall be made within one year from the payment thereof. Whenever
a refund is made by the commissioner of finance, the commissioner shall
state his or her reasons therefor in writing. Such application may be
made by the seller or supplier or the retailer or other person who has
actually paid the tax. The commissioner of finance may, in lieu of any
refund required to be made, allow credit therefor on payments due from
the applicant.
b. An application for a refund or credit made as herein provided shall
be deemed an application for revision of any tax, penalty or interest
complained of. If the commissioner of finance, prior to any hearing
held, initially denies the application for refund, the commissioner
shall give notice of such determination of denial to the applicant. Such
determination shall be final and irrevocable unless the applicant, with-
in thirty days after the giving of notice of such determination, shall
apply to the commissioner of finance for a hearing, or unless the
A. 10030 859
commissioner of finance of his or her own motion shall redetermine the
same. After such hearing the commissioner of finance shall give notice
of his or her determination to the applicant, who shall be entitled to
review such determination by a proceeding pursuant to article seventy-
eight of the civil practice law and rules, provided such proceeding is
instituted within four months after the giving of the notice of such
determination, and provided that a final determination of tax was not
previously made. Such a proceeding shall not be instituted unless an
undertaking is filed with the commissioner of finance in such amount and
with such sureties as a justice of the supreme court shall approve to
the effect that if such proceeding be dismissed or the tax confirmed,
the petitioner shall pay all costs and charges which may accrue in the
prosecution of such proceeding.
c. A person shall not be entitled to a revision, refund or credit
under this section of a tax, interest or penalty which had been deter-
mined to be due pursuant to the provisions of section 11-1610 of this
chapter where such person has had a hearing or an opportunity for a
hearing, as provided in said section, or has failed to avail himself or
herself of the remedies therein provided. No refund or credit shall be
made of a tax, interest or penalty paid after a determination by the
commissioner of finance made pursuant to section 11-1609 of this chapter
unless it be found that such determination was erroneous, illegal or
unconstitutional or otherwise improper, by the commissioner of finance
after a hearing or of the commissioner's own motion, or in a proceeding
under article seventy-eight of the civil practice law and rules, pursu-
ant to the provisions of said section, in which event refund or credit
without interest shall be made of the tax, interest or penalty found to
have been overpaid.
§ 11-1612 Reserves. In cases where the seller or supplier or the
retailer has applied for a refund and has instituted a proceeding under
article seventy-eight of the civil practice law and rules to review a
determination adverse to him or her on his or her application for
refund, the comptroller shall set up appropriate reserves to meet any
decision adverse to the city.
§ 11-1613 Remedies exclusive. The remedies provided by sections
11-1610 and 11-1611 of this chapter shall be the exclusive remedies
available to any person for the review of tax liability imposed by this
chapter; and no determination or proposed determination of tax or deter-
mination on any application for refund shall be enjoined or reviewed by
an action for declaratory judgment, an action for money had and received
or by any action or proceeding other than a proceeding in the nature of
a certiorari proceeding under article seventy-eight of the civil prac-
tice law and rules; provided, however, that a taxpayer may proceed by
declaratory judgment if such taxpayer institutes suit within thirty days
after a deficiency assessment is made and pays the amount of the defi-
ciency assessment to the commissioner of finance prior to the institu-
tion of such suit and posts a bond for costs as provided in section
11-1610 of this chapter.
§ 11-1614 Proceedings to recover tax. a. Whenever any seller or
supplier or retailer or other person shall fail to pay any tax, penalty
or interest imposed by this chapter, the corporation counsel shall, upon
the request of the commissioner of finance bring or cause to be brought
an action to enforce the payment of the same on behalf of the city of
Staten Island in any court of the state of New York or of any other
state or of the United States. If, however, the commissioner of finance
in his or her discretion believes that any such seller or supplier or
A. 10030 860
retailer or other person is about to cease business, leave the state or
remove or dissipate the assets out of which the tax, penalties or inter-
est might be satisfied, and that any such tax, penalty or interest will
not be paid when due, the commissioner of finance may declare such tax,
penalty or interest to be immediately due and payable and may issue a
warrant immediately.
b. As an additional or alternate remedy, the commissioner of finance
may issue a warrant, directed to the city sheriff commanding the city
sheriff to levy upon and sell the real and personal property of the
seller or supplier or retailer or other person liable for the tax, which
may be found within the city, for the payment of the amount thereof,
with any penalties and interest, and the cost of executing the warrant,
and to return such warrant to the commissioner of finance and to pay to
the commissioner of finance the money collected by virtue thereof within
sixty days after the receipt of such warrant. The city sheriff shall
within five days after the receipt of the warrant file with the county
clerk a copy thereof, and thereupon such clerk shall enter in the judg-
ment docket the name of the person mentioned in the warrant and the
amount of the tax, penalties and interest for which the warrant is
issued and the date when such copy is filed. Thereupon the amount of
such warrant so docketed shall become a lien upon the title to and
interest in real and personal property of the person against whom the
warrant is issued. The city sheriff shall then proceed upon the warrant,
in the same manner, and with like effect, as that provided by law in
respect to executions issued against property upon judgments of a court
of record, and for services in executing the warrant the city sheriff
shall be entitled to the same fees, which he or she may collect in the
same manner. In the discretion of the commissioner of finance a warrant
of like terms, force and effect may be issued and directed to any offi-
cer or employee of the department of finance, and in the execution ther-
eof such officer or employee shall have all the powers conferred by law
upon sheriffs, but shall be entitled to no fee or compensation in excess
of the actual expenses paid in the performance of such duty. If a
warrant is returned not satisfied in full, the commissioner of finance
may from time to time issue new warrants and shall also have the same
remedies to enforce the amount due thereunder as if the city had recov-
ered judgment therefor and execution thereon had been returned unsatis-
fied.
c. Whenever a seller or supplier or the retailer shall make a sale,
transfer, or assignment in bulk of any part of the whole of his or her
fixtures, or of his or her stock of merchandise, or of stock or merchan-
dise and of fixtures pertaining to the conduct or operation of business
of the seller or supplier or the retailer, otherwise than in the ordi-
nary course of trade and regular prosecution of business, the purchaser,
transferee or assignee shall at least ten days before taking possession
of the subject of said sale, transfer or assignment, or paying therefor,
notify the commissioner of finance by registered mail of the proposed
sale and of the price, terms and conditions thereof whether or not the
seller, transferor or assignor, has represented to, or informed the
purchaser, transferee or assignee that it owes any tax pursuant to this
chapter, and whether or not the purchaser, transferee or assignee has
knowledge that such taxes are owing, and whether any such taxes are in
fact owing.
Whenever the purchaser, transferee or assignee shall fail to give
notice to the commissioner of finance as required by the opening para-
graph of this subdivision, or whenever the commissioner of finance shall
A. 10030 861
inform the purchaser, transferee or assignee that a possible claim for
such tax or taxes exists, any sums of money, property or chooses in
action, or other consideration, which the purchaser, transferee or
assignee is required to transfer over to the seller, transferor or
assignor shall be subject to a first priority right and lien for any
such taxes theretofore or thereafter determined to be due from the sell-
er, transferor or assignor to the city, and the purchaser, transferee or
assignee is forbidden to transfer to the seller, transferor or assignor
any such sums of money, property or chooses in action to the extent of
the amount of the city's claim. For failure to comply with the
provisions of this subdivision, the purchaser, transferee or assignee,
in addition to being subject to the liabilities and remedies imposed
under the provisions of article six of the uniform commercial code,
shall be personally liable for the payment to the city of any such taxes
theretofore or thereafter determined to be due to the city from the
seller, transferor or assignor, and such liability may be assessed and
enforced in the same manner as the liability for tax under this chapter.
d. The commissioner of finance, if he or she finds that the interests
of the city will not thereby be jeopardized, and upon such conditions as
the commissioner of finance may require, may release any property from
the lien of any warrant or vacate such warrant for unpaid taxes, addi-
tions to tax, penalties and interest filed pursuant to subdivision b of
this section, and such release or vacating of the warrant may be
recorded in the office of any recording officer in which such warrant
has been filed. The clerk shall thereupon cancel and discharge as of the
original date of docketing the vacated warrant.
§ 11-1615 Penalties and interest. a. Any person failing to file a
return or to pay any tax to the commissioner of finance within the time
required by this chapter shall be subject to a penalty of five percent
of the amount of tax due; plus interest at the rate of one percent of
such tax for each month of delay excepting the first month after such
return was required to be filed or such tax became due; but the commis-
sioner of finance if satisfied that the delay was excusable, may remit
all or any part of such penalty, but not interest at the rate of six
percent per year. Such penalties and interest shall be paid and disposed
of in the same manner as other revenues from this chapter. Unpaid penal-
ties and interest may be enforced in the same manner as the tax imposed
by this chapter.
b. Any seller or supplier or any retailer or any officer of a corpo-
rate seller or supplier or retailer, failing to file a return as
required by this chapter, or filing or causing to be filed or making or
causing to be made or given or causing to be given any return, certif-
icate, affidavit, representation, information, testimony or statement
required or authorized by this chapter which is willfully false, and any
seller or supplier or any retailer or any officer of a corporate seller
or supplier or retailer failing to keep the records required by subdivi-
sion six of section 11-1602 of this chapter, shall, in addition to the
penalties under this subdivision or elsewhere prescribed, be guilty of a
misdemeanor, punishment for which shall be a fine of not more than one
thousand dollars or imprisonment for not more than one year, or both
such fine and imprisonment. It shall not be any defense to a prosecution
under this subdivision that the failure to file a return or that the
actions or failures to act mentioned in this subdivision was uninten-
tional or not willful.
c. The certificate of the commissioner of finance to the effect that a
tax has not been paid, that a return has not been filed, or that infor-
A. 10030 862
mation has not been supplied pursuant to the provisions of this chapter,
shall be presumptive evidence thereof.
§ 11-1616 Return to be secret. a. Except in accordance with proper
judicial order, or as otherwise provided by law, it shall be unlawful
for the commissioner of finance, any officer or employee of the depart-
ment of finance, any person engaged or retained on an independent
contract basis or any person who, pursuant to this section is permitted
to inspect any return or to whom a copy, an abstract or a portion of any
return is furnished, or to whom any information contained in any return
is furnished, to divulge or make known in any manner any information
contained in or relating to any return required under this chapter. The
officers charged with the custody of such returns shall not be required
to produce any of them or evidence of anything contained in them in any
action or proceeding in any court, except on behalf of the commissioner
of finance in an action or proceeding under the provisions of this chap-
ter, or on behalf of any party to any action or proceeding under the
provisions of this chapter, when the returns or facts shown thereby are
directly involved in such action or proceeding, in either of which
events the court may require the production of, and may admit in
evidence, so much of said returns or of the facts shown thereby, as are
pertinent to the action or proceeding and no more. Nothing under this
subdivision shall be construed to prohibit the delivery to a taxpayer or
such taxpayer's duly authorized representative of a certified copy of
any return filed in connection with such taxpayer's tax; nor to prohibit
the delivery of such a certified copy of such return or of any informa-
tion contained in or relating thereto, the United States of America or
any department thereof, to the state of New York or any department ther-
eof, or to any agency or department of the city of Staten Island,
provided the same is requested for official business; nor to prohibit
the inspection for official business of such returns by the corporation
counsel or other legal representatives of the city or by the district
attorney of Richmond county; nor to prohibit the publication of statis-
tics so classified as to prevent the identification of particular
returns and the items thereof. Returns shall be preserved for three
years and thereafter until the commissioner of finance permits them to
be destroyed.
b. Any violation of subdivision a of this section shall be punishable
by a fine not exceeding one thousand dollars, or by imprisonment not
exceeding one year, or both, in the discretion of the court, and if the
offender be an officer or employee of the city he or she shall be
dismissed from office and be incapable of holding any public office for
a period of five years thereafter.
§ 11-1617 Notices and limitations of time. a. Any notice author-
ized or required under the provisions of this chapter may be given by
mailing the same to the person for whom it is intended in a postpaid
envelope addressed to such person at the address given in the last
return filed by such person pursuant to the provisions of this chapter
or in any application made by such person or, if no return has been
filed or application made, then to such address as may be obtainable.
The mailing of such notice shall be presumptive evidence of the receipt
of the same by the person to whom addressed. Any period of time which
is determined according to the provisions of this chapter by the giving
of notice shall commence to run from the date of mailing of such notice.
b. The provisions of the civil practice law and rules or any other
law relative to limitations of time for the enforcement of a civil reme-
dy shall not apply to any proceeding or action taken by the city to
A. 10030 863
levy, appraise, assess, determine or enforce the collection of any tax
or penalty provided by this chapter. However, except in the case of a
willfully false or fraudulent return with intent to evade the tax, no
assessment of additional tax shall be made after the expiration of more
than three years from the date of the filing of a return; provided,
however, that where no return has been filed as provided by law the tax
may be assessed at any time.
c. Where, before the expiration of the period prescribed under this
section for assessment of an additional tax, a taxpayer has consented in
writing that such period be extended, the amount of such additional tax
due may be determined at any time within such extended period. The
period so extended may be further extended by subsequent consents in
writing made before the expiration of the extended period.
§ 11-1618 Construction and enforcement. This chapter shall be
construed and enforced in conformity with chapter three hundred ninety-
nine of the laws of nineteen hundred seventy-one, pursuant to which it
is enacted.
CHAPTER 17
CITY PERSONAL INCOME TAX ON RESIDENTS
SUBCHAPTER 1
GENERAL
§ 11-1701 Imposition of tax. General. A tax is hereby imposed on the
city taxable income of every city resident individual, estate and trust
determined in accordance with the rates set forth in subdivision (a) of
this section for taxable years beginning before two thousand twenty-sev-
en, and in accordance with the rates set forth in subdivision (b) of
this section for taxable years beginning after two thousand twenty-six.
Provided, however, that if, for any taxable year beginning after two
thousand twenty-six, the rates set forth in such subdivision (b) are
rendered inapplicable and the rates set forth in such subdivision (a)
are rendered applicable, then the tax for such taxable year shall be at
the rates provided under subparagraph (A) of paragraphs one, two and
three of such subdivision (a).
Notwithstanding the opening paragraph of this section, for taxable
years beginning after two thousand two and before two thousand six, a
tax is hereby imposed on the city taxable income of every city resident
individual, estate and trust determined in accordance with the rates set
forth in subdivision (g) of this section and in accordance with the
provisions of subdivision (h) of this section. During any taxable year
beginning after two thousand two and before two thousand six, in which
the tax imposed pursuant to this section is determined in accordance
with subdivisions (g) and (h) of this section, the rates set forth in
subdivisions (a) and (b) of this section shall be inapplicable, and the
tax imposed pursuant to section 11-1704.1 of this chapter shall be
suspended.
(a) Rate of tax. A tax imposed pursuant to this section shall be
determined as follows:
(1) Resident married individuals filing joint returns and resident
surviving spouses. The tax under this section for each taxable year on
the city taxable income of every city resident married individual who
makes a single return jointly with his or her spouse under subdivision
(b) of section 11-1751 of this chapter and on the city taxable income of
A. 10030 864
every city resident surviving spouse shall be determined in accordance
with the following tables:
(A) For taxable years beginning after two thousand sixteen:
If the city taxable income is: The tax is:
Not over $21,600 2.7% of the city taxable income
Over $21,600 but not $583 plus 3.3% of excess
over $45,000 over $21,600
Over $45,000 but not $1,355 plus 3.35% of excess
over $90,000 over $45,000
Over $90,000 $2,863 plus 3.4% of excess
over $90,000
(B) For taxable years beginning after two thousand fourteen and before
two thousand seventeen:
If the city taxable income is: The tax is:
Not over $21,600 2.55% of the city taxable income
Over $21,600 but not $551 plus 3.1% of excess
over $45,000 over $21,600
Over $45,000 but not $1,276 plus 3.15% of excess
over $90,000 over $45,000
Over $90,000 but not $2,694 plus 3.2% of excess
over $500,000 over $90,000
Over $500,000 $16,803 plus 3.4% of excess
over $500,000
(C) For taxable years beginning after two thousand nine and before two
thousand fifteen:
If the city taxable income is: The tax is:
Not over $21,600 2.55% of the city taxable income
Over $21,600 but not $551 plus 3.1% of excess
over $45,000 over $21,600
Over $45,000 but not $1,276 plus 3.15% of excess
over $90,000 over $45,000
Over $90,000 but not $2,694 plus 3.2% of excess
over $500,000 over $90,000
Over $500,000 $15,814 plus 3.4% of excess
over $500,000
(2) Resident heads of households. The tax under this section for each
taxable year on the city taxable income of every city resident head of a
household shall be determined in accordance with the following tables:
(A) For taxable years beginning after two thousand sixteen:
If the city taxable income is: The tax is:
Not over $14,400 2.7% of the city taxable income
Over $14,400 but not $389 plus 3.3% of excess
over $30,000 over $14,400
Over $30,000 but not $904 plus 3.35% of excess
over $60,000 over $30,000
Over $60,000 $1,909 plus 3.4% of excess
over $60,000
A. 10030 865
(B) For taxable years beginning after two thousand fourteen and before
two thousand seventeen:
If the city taxable income is: The tax is:
Not over $14,400 2.55% of the city taxable income
Over $14,400 but not $367 plus 3.1% of excess
over $30,000 over $14,400
Over $30,000 but not $851 plus 3.15% of excess
over $60,000 over $30,000
Over $60,000 but not $1,796 plus 3.2% of excess
over $500,000 over $60,000
Over $500,000 $16,869 plus 3.4% of excess
over $500,000
(C) For taxable years beginning after two thousand nine and before two
thousand fifteen:
If the city taxable income is: The tax is:
Not over $14,400 2.55% of the city taxable income
Over $14,400 but not $367 plus 3.1% of excess
over $30,000 over $14,400
Over $30,000 but not $851 plus 3.15% of excess
over $60,000 over $30,000
Over $60,000 but not $1,796 plus 3.2% of excess
over $500,000 over $60,000
Over $500,000 $15,876 plus 3.4% of excess
over $500,000
(3) Resident unmarried individuals, resident married individuals
filing separate returns and resident estates and trusts. The tax under
this section for each taxable year on the city taxable income of every
city resident individual who is not a married individual who makes a
single return jointly with his or her spouse under subdivision (b) of
section 11-1751 of this chapter or a city resident head of a household
or a city resident surviving spouse, and on the city taxable income of
every city resident estate and trust shall be determined in accordance
with the following tables:
(A) For taxable years beginning after two thousand sixteen:
If the city taxable income is: The tax is:
Not over $12,000 2.7% of the city taxable income
Over $12,000 but not $324 plus 3.3% of excess
over $25,000 over $12,000
Over $25,000 but not $753 plus 3.35% of excess
over $50,000 over $25,000
Over $50,000 $1,591 plus 3.4% of excess
over $50,000
(B) For taxable years beginning after two thousand fourteen and before
two thousand seventeen:
If the city taxable income is: The tax is:
Not over $12,000 2.55% of the city taxable income
Over $12,000 but not $306 plus 3.1% of excess
over $25,000 over $12,000
Over $25,000 but not $709 plus 3.15% of excess
A. 10030 866
over $50,000 over $25,000
Over $50,000 but not $1,497 plus 3.2% of excess
over $500,000 over $50,000
Over $500,000 $16,891 plus 3.4% of excess
over $500,000
(C) For taxable years beginning after two thousand nine and before two
thousand fifteen:
If the city taxable income is: The tax is:
Not over $12,000 2.55% of the city taxable income
Over $12,000 but not $306 plus 3.1% of excess
over $25,000 over $12,000
Over $25,000 but not $709 plus 3.15% of excess
over $50,000 over $25,000
Over $50,000 but not $1,497 plus 3.2% of excess
over $500,000 over $50,000
Over $500,000 $15,897 plus 3.4% of excess
over $500,000
(b) Rate of tax. A tax imposed pursuant to this section shall be
determined as follows:
(1) Resident married individuals filing joint returns and resident
surviving spouses. The tax under this section for each taxable year on
the city taxable income of every city resident married individual who
makes a single return jointly with his or her spouse under subdivision
(b) of section 11-1751 of this chapter and on the city taxable income of
every city resident surviving spouse shall be determined in accordance
with the following table:
For taxable years beginning after two thousand twenty-six:
If the city taxable income is: The tax is:
Not over $21,600 1.18% of the city taxable income
Over $21,600 but not $255 plus 1.435% of excess
over $45,000 over $21,600
Over $45,000 but not $591 plus 1.455% of excess
over $90,000 over $45,000
Over $90,000 $1,245 plus 1.48% of excess
over $90,000
(2) Resident heads of households. The tax under this section for each
taxable year on the city taxable income of every city resident head of a
household shall be determined in accordance with the following table:
For taxable years beginning after two thousand twenty-six:
If the city taxable income is: The tax is:
Not over $14,400 1.18% of the city taxable income
Over $14,400 but not $170 plus 1.435% of excess
over $30,000 over $14,400
Over $30,000 but not $394 plus 1.455% of excess
over $60,000 over $30,000
Over $60,000 $830 plus 1.48% of excess
over $60,000
(3) Resident unmarried individuals, resident married individuals
filing separate returns and resident estates and trusts. The tax under
this section for each taxable year on the city taxable income of every
A. 10030 867
city resident individual who is not a married individual who makes a
single return jointly with his or her spouse under subdivision (b) of
section 11-1751 of this chapter or a city resident head of a household
or a city resident surviving spouse, and on the city taxable income of
every city resident estate and trust shall be determined in accordance
with the following table:
For taxable years beginning after two thousand twenty-six:
If the city taxable income is: The tax is:
Not over $12,000 1.18% of the city taxable income
Over $12,000 but not $142 plus 1.435% of excess
over $25,000 over $12,000
Over $25,000 but not $328 plus 1.455% of excess
over $50,000 over $25,000
Over $50,000 $692 plus 1.48% of excess
over $50,000
(c) Partners and partnerships. A partnership as such shall not be
subject to tax under this chapter. Persons carrying on business as part-
ners shall be liable for tax under this chapter only in their separate
or individual capacities. As used in this chapter, the term "partner-
ship" shall include, unless a different meaning is clearly required, a
subchapter K limited liability company. The term "subchapter K limited
liability company" shall mean a limited liability company classified as
a partnership for federal income tax purposes. The term "limited liabil-
ity company" means a domestic limited liability company or a foreign
limited liability company, as defined in section one hundred two of the
limited liability company law, a limited liability investment company
formed pursuant to section five hundred seven of the banking law, or a
limited liability company formed pursuant to section one hundred two-a
of the banking law.
(d) Associations taxable as corporations. An association, trust or
other unincorporated organization which is taxable as a corporation for
federal income tax purposes shall not be subject to tax under this chap-
ter.
(e) Exempt trusts and organizations. A trust or other unincorporated
organization which by reason of its purposes or activities is exempt
from federal income tax shall be exempt from tax under this chapter,
regardless of whether subject to federal and state income tax on unre-
lated business taxable income.
(f) Cross references. For definitions of city taxable income of:
(1) City resident individual, see section 11-1711 of this chapter.
(2) City resident estate or trust, see section 11-1718 of this chap-
ter.
(g) Rate of tax. For taxable years beginning after two thousand two
and before two thousand six, the tax imposed pursuant to this section
shall be determined as follows:
(1) Resident married individuals filing joint returns and resident
surviving spouses. The tax under this section for each taxable year on
the city taxable income of every city resident married individual who
makes a single return jointly with his or her spouse under subdivision
(b) of section 11-1751 of this chapter and on the city taxable income of
every city resident surviving spouse shall be determined in accordance
with the following tables:
(A) For taxable years beginning in two thousand five:
A. 10030 868
If the city taxable income is: The tax is:
Not over $21,600 2.907% of the city taxable income
Over $21,600 but not over $45,000 $628 plus 3.534% of excess over
$21,600
Over $45,000 but not over $90,000 $1,455 plus 3.591% of excess over
$45,000
Over $90,000 but not over $150,000 $3,071 plus 3.648% of excess over
$90,000
Over $150,000 but not over $500,000 $5,260 plus 4.05% of excess over
$150,000
Over $500,000 $19,435 plus 4.45% of excess over
$500,000
(B) For taxable years beginning in two thousand four:
If the city taxable income is: The tax is:
Not over $21,600 2.907% of the city taxable income
Over $21,600 but not over $45,000 $628 plus 3.534% of excess over
$21,600
Over $45,000 but not over $90,000 $1,455 plus 3.591% of excess over
$45,000
Over $90,000 but not over $150,000 $3,071 plus 3.648% of excess over
$90,000
Over $150,000 but not over $500,000 $5,260 plus 4.175% of excess over
$150,000
Over $500,000 $19,872 plus 4.45% of excess over
$500,000
(C) For taxable years beginning in two thousand three:
If the city taxable income is: The tax is:
Not over $21,600 2.907% of the city taxable income
Over $21,600 but not over $45,000 $628 plus 3.534% of excess over
$21,600
Over $45,000 but not over $90,000 $1,455 plus 3.591% of excess over
$45,000
Over $90,000 but not over $150,000 $3,071 plus 3.648% of excess over
$90,000
Over $150,000 but not over $500,000 $5,260 plus 4.25% of excess over
$150,000
Over $500,000 $20,135 plus 4.45% of excess over
$500,000
(2) Resident heads of households. The tax under this section for each
taxable year on the city taxable income of every city resident head of a
household shall be determined in accordance with the following tables:
(A) For taxable years beginning in two thousand five:
If the city taxable income is: The tax is:
Not over $14,400 2.907% of the city taxable income
Over $14,400 but not over $30,000 $419 plus 3.534% of excess over
$14,400
Over $30,000 but not over $60,000 $970 plus 3.591% of excess over
$30,000
Over $60,000 but not over $125,000 $2,047 plus 3.648% of excess over
A. 10030 869
$60,000
Over $125,000 but not over $500,000 $4,418 plus 4.05% of excess over
$125,000
Over $500,000 $19,606 plus 4.45% of excess over
$500,000
(B) For taxable years beginning in two thousand four:
If the city taxable income is: The tax is:
Not over $14,400 2.907% of the city taxable income
Over $14,400 but not over $30,000 $419 plus 3.534% of excess over
$14,400
Over $30,000 but not over $60,000 $970 plus 3.591% of excess over
$30,000
Over $60,000 but not over $125,000 $2,047 plus 3.648% of excess over
$60,000
Over $125,000 but not over $500,000 $4,418 plus 4.175% of excess over
$125,000
Over $500,000 $20,075 plus 4.45% of excess over
$500,000
(C) For taxable years beginning in two thousand three:
If the city taxable income is: The tax is:
Not over $14,400 2.907% of the city taxable income
Over $14,400 but not over $30,000 $419 plus 3.534% of excess over
$14,400
Over $30,000 but not over $60,000 $970 plus 3.591% of excess over
$30,000
Over $60,000 but not over $125,000 $2,047 plus 3.648% of excess over
$60,000
Over $125,000 but not over $500,000 $4,418 plus 4.25% of excess over
$125,000
Over $500,000 $20,356 plus 4.45% of excess over
$500,000
(3) Resident unmarried individuals, resident married individuals
filing separate returns and resident estates and trusts. The tax under
this section for each taxable year on the city taxable income of every
city resident individual who is not a married individual who makes a
single return jointly with his or her spouse under subdivision (b) of
section 11-1751 of this chapter or a city resident head of household or
a city resident surviving spouse, and on the city taxable income of
every city resident estate and trust shall be determined in accordance
with the following tables:
(A) For taxable years beginning in two thousand five:
If the city taxable income is: The tax is:
Not over $12,000 2.907% of the city taxable income
Over $12,000 but not over $25,000 $349 plus 3.534% of excess over
$12,000
Over $25,000 but not over $50,000 $808 plus 3.591% of excess over
$25,000
Over $50,000 but not over $100,000 $1,706 plus 3.648% of excess over
A. 10030 870
$50,000
Over $100,000 but not over $500,000 $3,530 plus 4.05% of excess over
$100,000
Over $500,000 $19,730 plus 4.45% of excess over
$500,000
(B) For taxable years beginning in two thousand four:
If the city taxable income is: The tax is:
Not over $12,000 2.907% of the city taxable income
Over $12,000 but not over $25,000 $349 plus 3.534% of excess over
$12,000
Over $25,000 but not over $50,000 $808 plus 3.591% of excess over
$25,000
Over $50,000 but not over $100,000 $1,706 plus 3.648% of excess over
$50,000
Over $100,000 but not over $500,000 $3,530 plus 4.175% of excess over
$100,000
Over $500,000 $20,230 plus 4.45% of excess over
$500,000
(C) For taxable years beginning in two thousand three:
If the city taxable income is: The tax is:
Not over $12,000 2.907% of the city taxable income
Over $12,000 but not over $25,000 $349 plus 3.534% of excess over
$12,000
Over $25,000 but not over $50,000 $808 plus 3.591% of excess over
$25,000
Over $50,000 but not over $100,000 $1,706 plus 3.648% of excess over
$50,000
Over $100,000 but not over $500,000 $3,530 plus 4.25% of excess over
$100,000
Over $500,000 $20,530 plus 4.45% of excess over
$500,000
(h) Tax table benefit recapture. For taxable years beginning after two
thousand two and before two thousand six, there is hereby imposed a
supplemental tax, in addition to the tax imposed under the opening para-
graph of this section, for the purpose of recapturing the benefit of the
tax tables contained in subdivision (g) of this section. The supple-
mental tax shall be an amount equal to the sum of the tax table benefits
in paragraphs one and two of this subdivision multiplied by their
respective fractions in such paragraphs provided, however, that para-
graph one of this subdivision shall not apply to taxpayers who are not
subject to the second highest rate of tax.
(1) Resident married individuals filing joint returns, surviving
spouses, resident heads of households, resident unmarried individuals,
resident married individuals filing separate returns and resident
estates and trusts. (A) The tax table benefit is the difference between
(i) the amount of taxable income set forth in the tax table in subdivi-
sion (g) of this section not subject to the second highest rate of tax
for the taxable year multiplied by such rate and (ii) the second highest
dollar denominated tax for such amount of taxable income set forth in
the tax table applicable to the taxable year in subdivision (g) of this
section.
A. 10030 871
(B) The fraction is computed as follows: the numerator is the lesser
of fifty thousand dollars or the excess of New York adjusted gross
income for the taxable year over one hundred fifty thousand dollars and
the denominator is fifty thousand dollars.
(C) This paragraph shall only apply to taxable years beginning after
two thousand two and before two thousand six.
(2) Resident married individuals filing joint returns, surviving
spouses, resident heads of households, resident unmarried individuals,
resident married individuals filing separate returns and resident
estates and trusts. (A) The tax table benefit is the difference between
(i) the amount of taxable income set forth in the tax table in subdivi-
sion (g) of this section not subject to the highest rate of tax for the
taxable year multiplied by such rate and (ii) the highest dollar denomi-
nated tax for such amount of taxable income set forth in the tax table
applicable to the taxable year in subdivision (g) of this section less
the sum of the tax table benefits in paragraph one of this subdivision.
(B) For such taxpayers with adjusted gross income over five hundred
thousand dollars, the fraction is one. Provided, however, that the total
tax prior to the application of any tax credits shall not exceed the
highest rate of tax set forth in the tax table in subdivision (g) of
this section multiplied by the taxpayer's taxable income.
(C) This paragraph shall only apply to taxable years beginning after
two thousand two and before two thousand six.
§ 11-1703 Separate tax on the ordinary income portion of lump sum
distributions. (a) Imposition of separate tax. In addition to any other
tax imposed by this chapter, there is hereby imposed for each taxable
year a separate tax on the ordinary income portion of a lump sum
distribution of every city resident individual, estate and trust which
has made an election of lump sum treatment under subsection (e) of
section four hundred two of the internal revenue code. The recipient of
a lump sum distribution shall be liable for the tax imposed by this
section. The credits against tax under this chapter, except for the
credit under section 11-1773, shall not be allowed against the tax
imposed by this section.
(b) Cross reference. For computation of tax, see section 11-1724 of
this chapter.
§ 11-1704 Tax surcharge. (a) In addition to the taxes imposed by
sections 11-1701 and 11-1703 of this subchapter, there is hereby imposed
for each taxable year beginning after nineteen hundred eighty-nine but
before nineteen hundred ninety-nine, a tax surcharge on the city taxable
income of every city resident individual, estate and trust.
(b) The tax surcharge imposed pursuant to this section shall be deter-
mined as follows:
(1) Resident married individuals filing joint returns and resident
surviving spouses. The tax surcharge under this section on the city
taxable income of every city resident married individual who makes a
single return jointly with his or her spouse under subdivision (b) of
section 11-1751 of this chapter and on the city taxable income of every
city resident surviving spouse shall be determined in accordance with
the following tables:
(A) For taxable years beginning after nineteen hundred eighty-nine and
before nineteen hundred ninety-five:
A. 10030 872
If the city taxable income is: The tax surcharge is:
Not over $15,500 0
Over $15,500 but not over $27,000 0.51% of city taxable income in
excess of $15,500
Over $27,000 but not over $45,000 $59 plus 0.55% of excess over
$27,000
Over $45,000 but not over $108,000 $158 plus 0.51% of excess over
$45,000
Over $108,000 $479 plus 0.51% of excess over
$108,000
(B) For taxable years beginning after nineteen hundred ninety-four but
before nineteen hundred ninety-nine:
If the city taxable income is: The tax surcharge is:
Not over $14,400 0
Over $14,400 but not over $27,000 0.51% of city taxable income in
excess of $14,400
Over $27,000 but not over $45,000 $64 plus 0.55% of excess over
$27,000
Over $45,000 but not over $108,000 $162 plus 0.51% of excess over
$45,000
Over $108,000 $484 plus 0.51% of excess over
$108,000
(2) Resident heads of households. The tax surcharge under this section
on the city taxable income of every city resident head of household
shall be determined in accordance with the following tables:
(A) For taxable years beginning after nineteen hundred eighty-nine and
before nineteen hundred ninety-five:
If the city taxable income is: The tax surcharge is:
Not over $8,800 0
Over $8,800 but not over $16,500 0.51% of city taxable income in
excess of $8,800
Over $16,500 but not over $27,500 $39 plus 0.55% of excess over
$16,500
Over $27,500 but not over $66,000 $100 plus 0.51% of excess over
$27,500
Over $66,000 $296 plus 0.51% of excess over
$66,000
(B) For taxable years beginning after nineteen hundred ninety-four but
before nineteen hundred ninety-nine:
If the city taxable income is: The tax surcharge is:
Not over $7,350 0
Over $7,350 but not over $9,200 0.42% of city taxable income in
excess of $7,350
Over $9,200 but not over $17,250 $7 plus 0.51% of excess over
$9,200
Over $17,250 but not over $28,750 $48 plus 0.55% of excess over
$17,250
Over $28,750 but not over $69,000 $111 plus 0.51% of excess over
$28,750
Over $69,000 $317 plus 0.51% of excess over
A. 10030 873
$69,000
(3) Resident unmarried individuals, resident married individuals
filing separate returns and resident estates and trusts. The tax
surcharge under this section on the city taxable income of every city
resident individual who is not a city resident married individual who
makes a single return jointly with his or her spouse under subdivision
(b) of section 11-1751 of this chapter or a city resident head of house-
hold or a city resident surviving spouse, and on the city taxable income
of every city resident estate and trust shall be determined in accord-
ance with the following tables:
(A) For taxable years beginning after nineteen hundred eighty-nine and
before nineteen hundred ninety-five:
If the city taxable income is: The tax surcharge is:
Not over $9,000 0
Over $9,000 but not over $15,000 0.51% of city taxable income in
excess of $9,000
Over $15,000 but not over $25,000 $31 plus 0.55% of excess over
$15,000
Over $25,000 but not over $60,000 $86 plus 0.51% of excess over
$25,000
Over $60,000 $264 plus 0.51% of excess over
$60,000
(B) For taxable years beginning after nineteen hundred ninety-four but
before nineteen hundred ninety-nine:
If the city taxable income is: The tax surcharge is:
Not over $8,400 0
Over $8,400 but not over $15,000 0.51% of city taxable income in
excess of $8,400
Over $15,000 but not over $25,000 $33 plus 0.55% of excess over
$15,000
Over $25,000 but not over $60,000 $88 plus 0.51% of excess over
$25,000
Over $60,000 $266 plus 0.51% of excess over
$60,000
(c) The tax surcharge imposed pursuant to this section shall be admin-
istered, collected and distributed by the commissioner of taxation and
finance in the same manner as the taxes imposed pursuant to sections
11-1701 and 11-1703 of this subchapter, and all of the provisions of
this chapter, including sections 11-1706, 11-1721 and 11-1773 of this
chapter, shall apply to the tax surcharge imposed by this section.
(d) (1) Notwithstanding subdivision (b) of this section, with respect
to taxable years beginning in nineteen hundred ninety-three, nineteen
hundred ninety-four, nineteen hundred ninety-five and nineteen hundred
ninety-six, the mayor shall, by August first of nineteen hundred nine-
ty-two, nineteen hundred ninety-four and nineteen hundred ninety-five,
and by September fifteenth of nineteen hundred ninety-three, transmit to
the commissioner of taxation and finance a certification setting forth
the percentage of non-achievement regarding the combined police
uniformed staffing level with respect to the fiscal year of the city
ending on the immediately preceding June thirtieth, provided, however,
that for the city fiscal year ending in nineteen hundred ninety-three
A. 10030 874
the percentage of non-achievement shall be determined by the combined
police uniformed staffing level existing on August thirtieth, nineteen
hundred ninety-three, and further provided for all such fiscal years
that the percentage of non-achievement shall be calculated according to
the procedure specified in a memorandum of understanding relating to the
New York city safe streets-safe city program and to the enactment of
this subdivision dated February eleventh, nineteen hundred ninety-one,
as amended, and executed by the governor, the temporary president of the
senate, the speaker of the assembly, the minority leader of the senate,
the minority leader of the assembly, the mayor and the speaker of the
city council, any modification of such memorandum of understanding
subsequently agreed upon by all such signatories in a single subsequent
memorandum of understanding. If such percentage of non-achievement is
equal to or exceeds twenty-five percent with respect to the fiscal year
of the city of New York ending in nineteen hundred ninety-two, twenty
percent with respect to the city fiscal year ending in nineteen hundred
ninety-three or five percent with respect to the city fiscal years
ending in nineteen hundred ninety-four and nineteen hundred ninety-five,
then the rates of the tax surcharge imposed by this section for taxable
years beginning in the calendar year beginning on January first next
succeeding such August first or September fifteenth shall be the
products of the rates set forth in subdivision (b) of this section and a
percentage equal to the difference between one hundred percent and such
percentage of non-achievement, such products computed to the nearest
hundredth of a percent, and the dollar denominated amounts of the tax
surcharge set forth in subdivision (b) of this section shall be reduced
conformably.
(2) Notwithstanding subdivision (b) of this section, with respect to
the taxable year beginning in nineteen hundred ninety-eight, the mayor
shall, by August first of nineteen hundred ninety-seven, transmit to the
state commissioner of taxation and finance a certification setting forth
the percentage of non-achievement regarding the police uniformed staff-
ing level with respect to the fiscal year ending on the immediately
preceding June thirtieth, provided, however, that such percentage of
non-achievement shall be calculated according to the procedure specified
in a new memorandum of understanding relating to the enactment of this
paragraph dated no later than thirty days after such enactment, as
executed by the governor, the temporary president of the senate, the
speaker of the assembly, the minority leader of the senate, the minority
leader of the assembly, the mayor and the speaker of the city council
and any modifications of such new memorandum of understanding subse-
quently agreed upon by all such signatories in a single subsequent memo-
randum of understanding. If such percentage of non-achievement exceeds
two percent with respect to the fiscal year of the city ending in nine-
teen hundred ninety-seven, then the rates of the tax surcharge author-
ized by this section for the taxable years beginning in the calendar
year beginning on January first, nineteen hundred ninety-eight shall be
the products of the rates set forth in subdivision (b) of this section
and a percentage equal to the difference between one hundred percent and
the portion of the percentage of non-achievement that is in excess of
two percent, such products computed to the nearest hundredth of a
percent, and the dollar denominated amounts of the tax surcharge set
forth in subdivision (b) of this section shall be reduced conformably.
(3) If the rates of the surcharge imposed by this section are modified
pursuant to paragraph one or paragraph two of this subdivision, the
A. 10030 875
state commissioner of taxation and finance shall promulgate regulations
stating the modified rates.
(e) Notwithstanding anything in this section or section 11-1798 of
this chapter to the contrary, of the total revenue, including interest
and penalties, from the tax surcharge imposed by this section which the
state comptroller is required to pay, after June thirtieth, nineteen
hundred ninety-two, to the chief fiscal officer of the city for payment
into the treasury of the city, one hundred ten million dollars thereof
paid to the chief fiscal officer during the fiscal year of the city
commencing July first, nineteen hundred ninety-two, two hundred million
dollars thereof paid to the chief fiscal officer during the fiscal year
of the city commencing July first, nineteen hundred ninety-three, one
hundred sixty-seven million dollars thereof paid to the chief fiscal
officer during the fiscal year of the city commencing July first, nine-
teen hundred ninety-four, and one hundred eighty-five million dollars
thereof paid to the chief fiscal officer during the fiscal year of the
city commencing July first, nineteen hundred ninety-five, shall be cred-
ited to and deposited in the criminal justice account established within
the general fund of the city for the implementation of the safe streets-
safe city program. The balance of such revenue shall be credited to the
general fund of the city and shall be applied exclusively to or in aid
or support of the city's provision of criminal justice and fire
protection services.
(f) Notwithstanding anything in this article to the contrary, of the
total revenue, including interest and penalties, from the tax surcharge
imposed pursuant to the authority of this section which the state comp-
troller is required to pay to the chief fiscal officer of the city for
payment into the treasury of the city, ninety million dollars thereof
paid to such chief fiscal officer during the fiscal year of the city
commencing during calendar year nineteen hundred ninety-six, and one
hundred eighty-five million dollars thereof paid to such chief fiscal
officer during the fiscal year of the city commencing during calendar
year nineteen hundred ninety-seven, shall be credited to and deposited
in a criminal justice account established by the city within its general
fund. The balance of such revenue from such tax surcharge which the
state comptroller is required to pay to such chief fiscal officer for
payment into the treasury of the city for the taxable years beginning in
the calendar years beginning on January first, nineteen hundred ninety-
seven and January first, nineteen hundred ninety-eight shall be credited
to the general fund of the city to be applied exclusively to or in aid
or support of the city's provision of criminal justice and fire
protection services; provided however, that, notwithstanding the forego-
ing, such balance shall be applied to implementation of the capital
program for public schools within the city and a supplemental capital
rehabilitation program for such schools, to the extent that such appli-
cation is necessary for the timely implementation of such programs in
accordance with the memorandum of understanding executed pursuant to
paragraph two of subdivision (d) of this section and any modifications
thereto.
§ 11-1704.1 Additional tax. (a) (1) In addition to any other taxes
imposed by this chapter, there is hereby imposed for each taxable year
beginning after nineteen hundred ninety but before two thousand twenty-
seven, an additional tax on the city taxable income of every city resi-
dent individual, estate and trust, to be calculated for each taxable
year as follows: (i) for each taxable year beginning after nineteen
hundred ninety but before nineteen hundred ninety-nine, at the rate of
A. 10030 876
fourteen percent of the sum of the taxes for each such taxable year
determined pursuant to section 11-1701 and section 11-1704 of this
subchapter; and (ii) for each taxable year beginning after nineteen
hundred ninety-eight, at the rate of fourteen percent of the tax for
such taxable year determined pursuant to such section 11-1701 of this
subchapter.
(2) Notwithstanding paragraph one of this subdivision, for each taxa-
ble year beginning after two thousand but before two thousand two, the
additional tax shall be calculated as follows: (i) Resident married
individuals filing joint returns and resident surviving spouses. The
additional tax under this section for each taxable year on the tax
determined pursuant to section 11-1701 of this subchapter of every city
resident married individual who makes a single return jointly with his
or her spouse under subdivision (b) of section 11-1751 of this chapter
and on the tax determined pursuant to section 11-1701 of this subchapter
of every city resident surviving spouse shall be determined as follows:
(A) If the tax determined pursuant to section 11-1701 of this subchapter
is based on city taxable income equal to or less than ninety thousand
dollars, then the additional tax shall be 5.25% of such tax; (B) If the
tax determined pursuant to section 11-1701 of this subchapter is based
on city taxable income over ninety thousand dollars, then the additional
tax shall be the sum of 5.25% of such tax on city taxable income up to
and including ninety thousand dollars and 12.25% of such tax on city
taxable income in excess of ninety thousand dollars.
(ii) Resident heads of households. The additional tax under this
section for each taxable year on the tax determined pursuant to section
11-1701 of this subchapter of every city resident head of a household
shall be determined as follows: (A) If the tax determined pursuant to
section 11-1701 of this subchapter is based on city taxable income equal
to or less than sixty thousand dollars, then the additional tax shall be
5.25% of such tax; (B) If the tax determined pursuant to section 11-1701
of this subchapter is based on city taxable income over sixty thousand
dollars, then the additional tax shall be the sum of 5.25% of such tax
on city taxable income up to and including sixty thousand dollars and
12.25% of such tax on city taxable income in excess of sixty thousand
dollars.
(iii) Resident unmarried individuals, resident married individuals
filing separate returns and resident estates and trusts. The additional
tax under this section for each taxable year on the tax determined
pursuant to section 11-1701 of this subchapter of every city resident
individual who is not a married individual who makes a single return
jointly with his or her spouse under subdivision (b) of section 11-1751
of this chapter or a city resident head of a household or a city resi-
dent surviving spouse, and on the tax determined pursuant to section
11-1701 of this subchapter of every city resident estate and trust shall
be determined as follows: (A) If the tax determined pursuant to section
11-1701 of this subchapter is based on city taxable income equal to or
less than fifty thousand dollars, then the additional tax shall be 5.25%
of such tax; (B) If the tax determined pursuant to section 11-1701 of
this subchapter is based on city taxable income over fifty thousand
dollars, then the additional tax shall be the sum of 5.25% of such tax
on city taxable income up to and including fifty thousand dollars and
12.25% of such tax on city taxable income in excess of fifty thousand
dollars.
(b) The additional tax imposed pursuant to this section shall be
administered, collected and distributed by the commissioner of taxation
A. 10030 877
and finance in the same manner as the other taxes imposed pursuant to
this chapter, and all of the provisions of this chapter, including
sections 11-1706, 11-1721 and 11-1773, shall apply to the additional tax
imposed by this section.
§ 11-1705 General provisions and definitions. (a) Accounting periods
and methods. (1) Accounting periods. A taxpayer's taxable year under
this chapter shall be the same as his or her taxable year for federal
income tax purposes.
(2) Change of accounting periods. If a taxpayer's taxable year is
changed for federal income tax purposes, his or her taxable year for
purposes of this chapter shall be similarly changed. If a taxable year
of less than twelve months results from a change of taxable year, the
city standard deduction and the city exemptions shall be prorated under
regulations of the tax commission.
(3) Accounting methods. A taxpayer's method of accounting under this
chapter shall be the same as his or her method of accounting for federal
income tax purposes. In the absence of any method of accounting for
federal income tax purposes, city taxable income shall be computed under
such method as in the opinion of the tax commission clearly reflects
income.
(4) Change of accounting methods. (A) If a taxpayer's method of
accounting is changed for federal income tax purposes, his or her method
of accounting for purposes of this chapter shall be similarly changed.
(B) If a taxpayer's method of accounting is changed, other than from
an accrual to an installment method, any additional tax which results
from adjustments determined to be necessary solely by reason of the
change shall not be greater than if such adjustments were ratably allo-
cated and included for the taxable year of the change and the preceding
taxable years, not in excess of two, during which the taxpayer used the
method of accounting from which the change is made.
(C) If a taxpayer's method of accounting is changed from an accrual to
an installment method, any additional tax for the year of such change of
method and for any subsequent year which is attributable to the receipt
of installment payments properly accrued in a prior year, shall be
reduced by the portion of tax for any prior taxable year attributable to
the accrual of such installment payments, in accordance with regulations
of the tax commission.
(b) City resident and city nonresident defined. (1) City resident
individual. A city resident individual means an individual:
(A) who is domiciled in this city, unless (i) the taxpayer maintains
no permanent place of abode in this city, maintains a permanent place of
abode elsewhere, and spends in the aggregate not more than thirty days
of the taxable year in this city, or (ii) (I) within any period of five
hundred forty-eight consecutive days the taxpayer is present in a
foreign country or countries for at least four hundred fifty days, and
(II) during the period of five hundred forty-eight consecutive days the
taxpayer, the taxpayer's spouse, unless such spouse is legally sepa-
rated, and the taxpayer's minor children are not present in this city
for more than ninety days, and (III) during any period of less than
twelve months, which would be treated as a separate taxable period
pursuant to section 11-1754 of this chapter, and which period is
contained within the period of five hundred forty-eight consecutive
days, the taxpayer is present in this city for a number of days which
does not exceed an amount which bears the same ratio to ninety as the
number of days contained in that period of less than twelve months bears
to five hundred forty-eight, or
A. 10030 878
(B) who maintains a permanent place of abode in this city and spends
in the aggregate more than one hundred eighty-three days of the taxable
year in this city, whether or not domiciled in this city for any portion
of the taxable year, unless such individual is in active service in the
armed forces of the United States.
(2) City nonresident individual. A city nonresident individual means
an individual who is not a city resident.
(3) City resident estate or trust. A city resident estate or trust
means:
(A) the estate of a decedent who at his or her death was domiciled in
this city,
(B) a trust, or a portion of a trust, consisting of property trans-
ferred by will of a decedent who at his or her death was domiciled in
this city, or
(C) a trust, or portion of a trust, consisting of the property of:
(i) a person domiciled in this city at the time such property was
transferred to the trust, if such trust or portion of a trust was then
irrevocable, or if it was then revocable and has not subsequently become
irrevocable; or
(ii) a person domiciled in this city at the time such trust, or
portion of a trust, became irrevocable, if it was revocable when such
property was transferred to the trust but has subsequently become irrev-
ocable.
For the purposes of this paragraph, a trust or portion of a trust is
revocable if it is subject to a power, exercisable immediately or at any
future time, to revest title in the person whose property constitutes
such trust or portion of a trust, and a trust or portion of a trust
becomes irrevocable when the possibility that such power may be exer-
cised has been terminated.
(D) (i) Provided, however, a resident trust is not subject to tax
under this article if all of the following conditions are satisfied:
(I) all the trustees are domiciled outside the city of New York; (II)
the entire corpus of the trusts, including real and tangible property,
is located outside the city of New York; and (III) all income and gains
of the trust are derived from or connected with sources outside of the
city of New York, determined as if the trust were a non-resident trust.
(ii) For purposes of item (II) of clause (i) of this subparagraph,
intangible property shall be located in this city if one or more of the
trustees are domiciled in the city of New York.
(iii) Provided further, that for the purposes of item (I) of clause
(i) of this subparagraph, a trustee which is a banking corporation as
defined in subdivision (a) of section 11-640 of this title and which is
domiciled outside the city of New York at the time it becomes a trustee
of the trust shall be deemed to continue to be a trustee domiciled
outside the city of New York notwithstanding that it thereafter other-
wise becomes a trustee domiciled in the city of New York by virtue of
being acquired by, or becoming an office or branch of, a corporate trus-
tee domiciled within the city of New York.
For the purposes of this subparagraph, a trust or portion of a trust
is revocable if it is subject to a power, exercisable immediately or at
any future time, to revest title in the person whose property consti-
tutes such trust or portion of a trust, and a trust or portion of a
trust becomes irrevocable when the possibility that such power may be
exercised has been terminated.
A. 10030 879
(4) City nonresident estate or trust. A city nonresident estate or
trust means an estate or trust which is not a city resident estate or
trust.
(5) Cross reference. For effect of a change of resident status, see
section 11-1754 of this chapter.
§ 11-1706 Credits against tax. (a) Credit relating to net capital
gain. For taxable years beginning in nineteen hundred eighty-seven, a
credit against the tax imposed under section 11-1701 of this subchapter
shall be allowed. The amount of the credit shall be one-half of one
percent of net capital gain includible in city adjusted gross income for
the taxable year. The credit allowed by this subdivision shall not
exceed the tax imposed by section 11-1701 of this subchapter reduced by
the credits permitted under section 11-1721 of this chapter and subdivi-
sion (b) of this section.
(b) Household credit. (1) For taxable years beginning after nineteen
hundred eighty-six, a credit against the city personal income tax
imposed by section 11-1701 of this subchapter shall be allowed. The
credit, computed as described in paragraph two of this subdivision,
shall not exceed the tax imposed by section 11-1701 of this subchapter,
reduced by the credit permitted under section 11-1721 of this chapter.
(2) (A) For any individual who is not married nor the head of a house-
hold nor a surviving spouse, the amount of the credit shall be deter-
mined in accordance with the following table:
------------------------------------------------------------------------
If household gross The credit shall be:
income is:
For taxable years For taxable years
beginning after beginning after
1986 and before 1995
1996
------------------------------------------------------------------------
Not over $7,500 $15 $15
Over $7,500 but not over
$10,000 $10 $15
Over $10,000 but not over
$12,500 $0 $10
(B) For any husband and wife, head of household or surviving spouse,
the amount of the credit shall be determined by multiplying the number
of exemptions for which the taxpayer, or in the case of a husband and
wife, taxpayers, is entitled to a deduction for the taxable year for
federal income tax purposes under subsections (b) and (c) of section one
hundred fifty-one of the internal revenue code by the credit factor for
the taxable year as specified in the following table:
------------------------------------------------------------------------
If household gross The credit factor is:
income is:
For taxable years
beginning in
1987 1988
1989 For taxable years
through beginning after
1995 1995
A. 10030 880
------------------------------------------------------------------------
Not over $12,500 $30 $50 $50 $30
Over $12,500 but not
over $15,000 $20 $40 $50 $30
Over $15,000 but not
over $17,500 $10 $20 $25 $25
Over $17,500 but not
over $20,000 $0 $15 $15 $15
Over $20,000 but not
over $22,500 $0 $0 $0 $10
(3) For purposes of this subdivision:
(A) "Household gross income" shall mean the aggregate federal adjusted
gross income of a household, as the term household is defined in subpar-
agraph (B) of this paragraph, for the taxable year.
(B) "Household" means a husband and wife, a head of household, a
surviving spouse, or an individual who is not married nor the head of a
household nor a surviving spouse nor a taxpayer with respect to whom a
deduction under subsection (c) of section one hundred fifty-one of the
internal revenue code is allowable to another taxpayer for the taxable
year.
(C) "Household gross income of a husband and wife" shall be the aggre-
gate of their federal adjusted gross incomes for the taxable year irre-
spective of whether joint or separate city income tax returns are filed.
Provided, however, that a husband or wife who is required to file a
separate city income tax return shall be permitted one-half the credit
otherwise allowed his or her household, except as limited by paragraph
one of this subdivision.
(D) "Household gross income" shall be computed in all cases as if each
member of the household were a resident for the entire taxable year.
(E) If a taxpayer changes his or her status during his or her taxable
year from resident to nonresident, or from nonresident to resident, the
household credit shall be prorated according to the number of months in
the period of residence. In the case of a husband and wife, if either or
both changes his or her status from resident to nonresident or from
nonresident to resident and separate returns are filed, the credit
computed for the entire year shall be divided first as provided in
subparagraph (C) of this paragraph and then prorated according to the
number of months in the period of residence.
(c) State school tax reduction credit.
(1) For taxable years beginning after nineteen hundred ninety-seven
and ending before two thousand sixteen, a state school tax reduction
credit shall be allowed as provided in the following tables. The credit
shall be allowed against the taxes authorized by this article reduced by
the credits permitted by this article. If the credit exceeds the tax as
so reduced, the taxpayer may receive, and the comptroller, subject to a
certificate of the commissioner, shall pay as an overpayment, without
interest, the amount of such excess. For purposes of this subdivision,
no credit shall be granted to an individual with respect to whom a
deduction under subsection (c) of section one hundred fifty-one of the
internal revenue code is allowable to another taxpayer for the taxable
year.
(2) The amount of the credit under this paragraph shall be determined
based upon the taxpayer's income as defined in subparagraph (ii) of
A. 10030 881
paragraph (b) of subdivision four of section four hundred twenty-five of
the real property tax law. For purposes of this paragraph, any taxpayer
under subparagraphs (A) and (B) of this paragraph with income of more
than two hundred fifty thousand dollars shall not receive a credit.
Beginning in the two thousand ten tax year and each tax year thereaft-
er through two thousand fifteen, the "more than two hundred fifty thou-
sand dollar" income limitation shall be adjusted by applying the
inflation factor set forth herein, and rounding each result to the near-
est multiple of one hundred dollars. The department shall establish the
income limitation to be associated with each subsequent tax year by
applying the inflation factor set forth herein to the figures that
define the income limitation that were applicable to the preceding tax
year, as determined pursuant to this subdivision, and rounding each
result to the nearest multiple of one hundred dollars. Such determi-
nation shall be made no later than March first, two thousand ten and
each year thereafter.
(A) Married individuals filing joint returns and surviving spouses. In
the case of a husband and wife who make a single return jointly and of a
surviving spouse:
For taxable years beginning: The credit shall be:
in 2001-2005 $125
in 2006 $230
in 2007-2008 $290
in 2009-2015 $125
(B) All others. In the case of an unmarried individual, a head of a
household or a married individual filing a separate return:
For taxable years beginning: The credit shall be:
in 2001-2005 $62.50
in 2006 $115
in 2007-2008 $145
in 2009-2015 $62.50
(4) Husband and wife who make a joint return. If a husband and wife
make a single return jointly, the credit under this subdivision shall be
determined under paragraph two of this subdivision, if either of them
has attained the age of sixty-five on or before the close of the taxable
year.
(5) Part-year residents. If a taxpayer changes status during the taxa-
ble year from resident to nonresident, or from nonresident to resident,
the state school tax reduction credit shall be prorated according to the
number of months in the period of residence.
(c) Credit for unincorporated business taxes paid. (1) A city resident
individual, estate or trust whose city adjusted gross income includes
income, gain, loss or deductions from one or more unincorporated busi-
nesses conducted by such city resident individual, estate or trust that
are subject to the tax imposed by chapter five of this title, or a
distributive share of income, gain, loss and deductions of, or guaran-
teed payments from, one or more partnerships that are subject to the tax
imposed by such chapter, shall be allowed a credit as provided in para-
graph two of this subdivision against the tax otherwise due under
sections 11-1701, 11-1703, 11-1704 and 11-1704.1 of this subchapter.
(2) (A) Subject to the limitation set forth in subparagraph (B) of
this paragraph, the credit allowed to a taxpayer for a taxable year
under this subdivision shall be determined as follows:
(i) For taxable years beginning on or after January first, nineteen
hundred ninety-seven and before January first, two thousand seven:
A. 10030 882
(I) If the city taxable income is forty-two thousand dollars or less,
the credit shall be sixty-five percent of the amount determined in para-
graph three of this subdivision.
(II) If the city taxable income is greater than forty-two thousand
dollars but not greater than one hundred forty-two thousand dollars, the
amount of the credit shall be a percentage of the amount determined in
paragraph three of this subdivision, such percentage to be determined by
subtracting from sixty-five percent, one-tenth of a percentage point
(.001) for every increment of two hundred dollars, or fractional part
thereof, of city taxable income in excess of forty-two thousand dollars.
(III) If the city taxable income is greater than one hundred forty-two
thousand dollars, the credit shall be fifteen percent of the amount
determined in paragraph three of this subdivision.
(ii) For taxable years beginning on or after January first, two thou-
sand seven:
(I) If the city taxable income is forty-two thousand dollars or less,
the credit shall be one hundred percent of the amount determined in
paragraph three of this subdivision.
(II) If the city taxable income is greater than forty-two thousand
dollars but less than one hundred forty-two thousand dollars, the amount
of the credit shall be a percentage of the amount determined in para-
graph three of this subdivision, such percentage to be determined by
subtracting from one hundred percent, a percentage determined by
subtracting forty-two thousand dollars from city taxable income, divid-
ing the result by one hundred thousand dollars and multiplying by seven-
ty-seven percent.
(III) If the city taxable income is one hundred forty-two thousand
dollars or greater, the credit shall be twenty-three percent of the
amount determined in paragraph three of this subdivision.
(B) Notwithstanding anything to the contrary in subparagraph (A) of
this paragraph, the credit allowed to a taxpayer for a taxable year
under this subdivision shall not exceed the sum of the taxes that would
otherwise be imposed by sections 11-1701, 11-1703, 11-1704 and 11-1704.1
of this subchapter on such taxpayer for such taxable year after the
allowance of any other credits allowed by this section or section
11-1721 of this chapter.
(3) Subject to the provisions of subparagraph (C) of this paragraph,
the amount determined in this paragraph is the sum of:
(A) for each unincorporated business conducted by the taxpayer, the
tax imposed by chapter five of this title on such unincorporated busi-
ness for its taxable year ending with the taxable year of the taxpayer
and paid by the unincorporated business; and
(B) for each unincorporated business in which the taxpayer is a part-
ner, the product of:
(i) the sum of (I) the tax imposed by chapter five of this title on
such unincorporated business for its taxable year ending within or with
the taxable year of the partner and paid by the unincorporated business
and (II) the amount of any credit or credits taken by the unincorporated
business under subdivision (j) of section 11-503 of this title for its
taxable year ending within or with the taxable year of the partner; and
(ii) a fraction, the numerator of which is the net total of the part-
ner's distributive share of income, gain, loss and deductions of, and
guaranteed payments from, the unincorporated business for such taxable
year, and the denominator of which is the sum, for such taxable year, of
the net total distributive shares of income, gain, loss and deductions
of, and guaranteed payments to, all partners in the unincorporated busi-
A. 10030 883
ness for whom or which such net total, as separately determined for each
partner, is greater than zero.
(C) For a taxpayer that changes its status from a city resident to a
city nonresident or from a city nonresident to a city resident during
the taxable year:
(i) the amount determined in subparagraph (A) of this paragraph shall
be, with respect to each unincorporated business conducted by the
taxpayer, the tax imposed by chapter five of this title on such unincor-
porated business for its taxable year ending with the taxable year of
the taxpayer and paid by the unincorporated business, multiplied by a
fraction, the numerator of which is that portion of the income, gain,
loss and deductions of the unincorporated business included in the
taxpayer's adjusted gross income for the portion of the taxable year
during which the taxpayer was a city resident, and the denominator of
which is the total, for such taxable year, of the income, gain, loss and
deductions of the unincorporated business, and
(ii) the amount determined in clause (ii) of subparagraph (B) of this
paragraph shall be a fraction, the numerator of which is that portion of
the taxpayer's net total distributive share of income, gain, loss and
deductions of, and that portion of guaranteed payments from, the unin-
corporated business included in the taxpayer's city adjusted gross
income for the portion of the taxable year during which the taxpayer was
a city resident, and the denominator of which is the sum, for such taxa-
ble year, of the net total distributive shares of income, gain, loss and
deductions of, and guaranteed payments to, all partners in the unincor-
porated business, for whom or which such net total, as separately deter-
mined for each partner, is greater than zero.
(4) For purposes of subdivision (c) of section 11-1902 of this title,
in determining the amount of tax that a nonresident would be required to
pay if such nonresident were a resident of the city and subject to the
tax on personal income of residents, the credit allowed by this subdivi-
sion shall be taken into account.
(d) Earned income tax credit. (1) For taxable years beginning after
two thousand three, a credit against the city personal income tax shall
be allowed, equal to five percent of the earned income credit allowed
under section thirty-two of the internal revenue code for the same taxa-
ble year, and, for taxable years beginning after two thousand twenty-
one, a credit against the city personal income tax shall be allowed,
equal to a percentage determined pursuant to subparagraphs (A) through
(I) of this paragraph, of the earned income credit allowed under section
thirty-two of the internal revenue code for the same taxable year. For
purposes of this paragraph, "adjusted gross income" means New York
adjusted gross income as determined pursuant to article twenty-two of
the tax law. The percentage shall be:
(A) thirty percent, where the taxpayer's adjusted gross income for
such taxable year is less than five thousand dollars;
(B) thirty percent reduced by the product of two-tenths of a percent-
age point (0.002) and the amount of the taxpayer's adjusted gross income
for such taxable year in excess of four thousand nine hundred ninety-
nine dollars, where such taxpayer's adjusted gross income for such taxa-
ble year is equal to or greater than five thousand dollars and less than
seven thousand five hundred dollars;
(C) twenty-five percent, where the taxpayer's adjusted gross income
for such taxable year is equal to or greater than seven thousand five
hundred dollars and less than fifteen thousand dollars;
A. 10030 884
(D) twenty-five percent reduced by the product of two-tenths of a
percentage point (0.002) and the amount of the taxpayer's adjusted gross
income for such taxable year in excess of fourteen thousand nine hundred
ninety-nine dollars, where such taxpayer's adjusted gross income for
such taxable year is equal to or greater than fifteen thousand dollars
and less than seventeen thousand five hundred dollars;
(E) twenty percent, where the taxpayer's adjusted gross income for
such taxable year is equal to or greater than seventeen thousand five
hundred dollars and less than twenty thousand dollars;
(F) twenty percent reduced by the product of two-tenths of a percent-
age point (0.002) and the amount of such taxpayer's adjusted gross
income for such taxable year in excess of nineteen thousand nine hundred
ninety-nine dollars, where the taxpayer's adjusted gross income for such
taxable year is equal to or greater than twenty thousand dollars and
less than twenty-two thousand five hundred dollars;
(G) fifteen percent, where the taxpayer's adjusted gross income for
such taxable year is equal to or greater than twenty-two thousand five
hundred dollars and less than forty thousand dollars;
(H) fifteen percent reduced by the product of two-tenths of a percent-
age point (0.002) and the amount of the taxpayer's adjusted gross income
for such taxable year in excess of thirty-nine thousand nine hundred
ninety-nine dollars, where such taxpayer's adjusted gross income for
such taxable year is equal to or greater than forty thousand dollars and
less than forty-two thousand five hundred dollars; and
(I) ten percent where the taxpayer's adjusted gross income for such
taxable year is equal to or greater than forty-two thousand five hundred
dollars.
(2) In the case of a resident taxpayer, the credit provided by this
subdivision shall be allowed against the taxes authorized by this chap-
ter for the taxable year reduced by the credits permitted by this chap-
ter. If the credit exceeds the tax as so reduced, the taxpayer may
receive, and the state comptroller, subject to a certificate of the
commissioner of the state department of taxation and finance, shall pay
as an overpayment, without interest, the amount of such excess.
(3) If a taxpayer changes his or her status during the taxable year
from city resident to city nonresident, or from city nonresident to city
resident, the credit determined under this subdivision shall be limited
to the amount determined by multiplying the amount of such credit by a
fraction, the numerator of which is such taxpayer's city adjusted gross
income, for the period of residence, and the denominator of which is
such taxpayer's city adjusted gross income determined as if he or she
were a city resident for the entire taxable year. City adjusted gross
income shall be adjusted as provided in section 11-1754 of this chapter.
The credit as so limited shall be applied as provided in paragraph two
of this subdivision.
(4) Subject to the provisions of paragraph three of this subdivision,
in the case of a husband and wife who file a joint return, but who are
required to determine their city personal income taxes separately, the
credit authorized pursuant to this subdivision may be applied against
the tax of either or divided between them as they may elect. In the case
of a husband and wife who are not required to file a federal return, the
credit under this subsection shall be allowed only if such taxpayers
file a joint city personal income tax return.
(5) If the state commissioner of taxation and finance determines that
the taxpayer is eligible to receive the credit provided under this
subdivision but has not claimed such credit on his or her return, the
A. 10030 885
state commissioner of taxation and finance shall compute and issue any
refund for the allowable credit amount provided under this subdivision.
Any refund paid pursuant to this paragraph shall be deemed to be a
refund of an overpayment of tax as provided in section 11-1786 of this
chapter, provided, however, that no interest shall be paid thereon.
(e) Credit for certain household and dependent care services necessary
for gainful employment. (1) For taxable years beginning on or after
January first, two thousand seven, a taxpayer shall be allowed a credit
as provided herein equal to the applicable percentage of the credit
allowed under subsection (c) of section six hundred six of the tax law
with respect to qualifying individuals as defined in paragraph one of
subsection (b) of section twenty-one of the internal revenue code, with-
out regard to whether the taxpayer in fact claimed the credit under such
section twenty-one for the taxable year, who are dependents of the
taxpayer and who have not attained the age of four as of the end of the
taxable year. The applicable percentage shall be determined as follows:
(A) If household gross income as defined in subparagraph (A) of para-
graph three of subdivision (b) of this section is twenty-five thousand
dollars or less, the applicable percentage shall be seventy-five
percent.
(B) If such household gross income is greater than twenty-five thou-
sand dollars but not greater than thirty thousand dollars, the applica-
ble percentage shall be seventy-five percent multiplied by one minus a
fraction, the numerator of which is such household gross income less
twenty-five thousand dollars and the denominator of which is five thou-
sand dollars.
(C) If such household gross income is greater than thirty thousand
dollars, the applicable percentage shall be zero.
(2) The credit under this subdivision shall be allowed against the
taxes imposed by this chapter reduced by the credits permitted by this
chapter. If the credit exceeds the tax as so reduced, the taxpayer may
receive, and the state comptroller, subject to the certificate of the
state commissioner of taxation and finance, shall pay as an overpayment,
without interest, the amount of such excess, provided, however, in the
case of a taxpayer who is a part-year resident of New York city any such
overpayment under this paragraph shall be limited to the amount of such
excess multiplied by a fraction, the numerator of which is federal
adjusted gross income for the period of residence, computed as if the
taxable year for federal income tax purposes were limited to the period
of residence, and the denominator of which is federal adjusted gross
income for the taxable year.
(3) In the case of a husband and wife who filed a joint federal
return, but who are required to determine their New York city taxes
separately, the credit allowed pursuant to this subdivision may only be
applied against the tax imposed on the spouse with the lower taxable
income, computed without regard to such credit, provided, however, if
the spouse with the lower taxable income is a nonresident of the city,
no credit shall be allowed under this subdivision. In the case of a
husband and wife who are not required to file a federal return, the
credit under this subdivision shall be allowed only if such taxpayers
file a joint New York city income tax return.
(f) Credit for general corporation tax paid. (1) A city resident indi-
vidual, estate or trust whose city adjusted gross income includes a pro
rata share of income, loss and deductions described in paragraph one of
subsection (a) of section thirteen hundred sixty-six of the internal
revenue code, from one or more New York S corporations as defined in
A. 10030 886
subdivision one-A of section two hundred eight of the tax law, or from
one or more QSSSs as defined in subdivision one-B of section two hundred
eight of the tax law, that are exempt QSSSs by reason of clause (A) of
subparagraph one of paragraph (k) of subdivision nine of section two
hundred eight of the tax law, on which a tax is imposed by subchapter
two of chapter six of this title, shall be allowed a credit as provided
in paragraph two of this subdivision against the tax otherwise due under
sections 11-1701, 11-1703, 11-1704 and 11-1704.1 of this chapter.
(2) (A) Subject to the limitations set forth in subparagraphs (B) and
(C) of this paragraph, the credit allowed to a taxpayer for a taxable
year under this subdivision shall be determined as follows:
(i) For taxable years beginning on or after January first, two thou-
sand fourteen and before July first, two thousand nineteen:
(I) If the city taxable income is thirty-five thousand dollars or
less, the amount of the credit shall be one hundred percent of the
amount determined in paragraph three of this subdivision.
(II) If the city taxable income is greater than thirty-five thousand
dollars but less than one hundred thousand dollars, the amount of the
credit shall be a percentage of the amount determined in paragraph three
of this subdivision, such percentage to be determined by subtracting
from one hundred percent, a percentage determined by subtracting thir-
ty-five thousand dollars from city taxable income, dividing the result
by sixty-five thousand dollars and multiplying by one hundred percent.
(III) If the city taxable income is one hundred thousand dollars or
greater, no credit shall be allowed.
(IV) Provided further that for any taxable year of a taxpayer for
which this credit is effective that encompasses days occurring after
June thirtieth, two thousand nineteen, the amount of the credit deter-
mined in item (I) or (II) of this clause shall be multiplied by a frac-
tion, the numerator of which is the number of days in the taxpayer's
taxable year occurring on or before June thirtieth, two thousand nine-
teen, and the denominator of which is the number of days in the taxpay-
er's taxable year.
(B) Notwithstanding anything to the contrary in subparagraph (A) of
this paragraph, the credit allowed to a taxpayer for a taxable year
under this subdivision shall not exceed the sum of the taxes that would
otherwise be imposed by sections 11-1701, 11-1703, 11-1704 and 11-1704.1
of this subchapter on such taxpayer for such taxable year after the
allowance of any other credits allowed by subdivisions (a), (b) and (c)
of this section, and section 11-1721 of this chapter.
(C) Notwithstanding anything to the contrary in subparagraph (A) of
this paragraph, no credit shall be allowed for any amount of tax
imposed, or credit allowed, by subchapter two of chapter six of this
title on, or to, a combined group of corporations including a New York S
corporation or an exempt QSSS, except where the combined group consists
exclusively of one or more New York S corporations and one or more
exempt QSSSs of such corporations as described in paragraph one of this
subdivision, provided that each of the New York S corporations included
in the group is wholly owned by the same interests and in the same
proportions as each other New York S corporation included in the group.
(3) Subject to the provisions of subparagraph (B) of this paragraph
and subparagraph (C) of paragraph two of this subdivision, the amount
determined in this paragraph is the sum of the taxpayer's pro rata share
of the amounts determined in subparagraph (A) of this paragraph for each
New York S corporation, or exempt QSSS, described in paragraph one of
this subdivision, a pro rata share of whose income, loss and deductions
A. 10030 887
described in paragraph one of subsection (a) of section thirteen hundred
sixty-six of the internal revenue code, is included in the taxpayer's
city adjusted gross income.
(A) The amount determined in this subparagraph is the sum of:
(i) the taxes imposed by subchapter two of chapter six of this title
on such corporation, or a combined group including such corporation, for
its taxable year ending within or with the taxable year of the taxpayer
and paid by such corporation, or combined group; and
(ii) the amount of any credit or credits taken by such corporation, or
a combined group including such corporation, under subdivision eighteen
of section 11-604 of this title for its taxable year ending within or
with the taxable year of the taxpayer.
(B) For purposes of this subdivision, the taxpayer's pro rata share of
the amount in subparagraph (A) of this paragraph for the taxable year
shall be the amount determined with respect to the taxpayer:
(i) by assigning an equal portion of the amount in subparagraph (A) of
this paragraph to each day of the corporation's taxable year on which
the corporation has shares outstanding,
(ii) then by dividing that portion pro rata among the shares outstand-
ing on that day; provided, however,
(iii) if the taxable year of such corporation for purposes of chapter
six of this title is different from its New York S year or S short year
as defined in subdivision one-A of section two hundred eight of the tax
law, only those portions that are assigned to days of the taxable year
that are also days of the New York S year or S short year shall be taken
into account in determining the shareholder's pro rata share of the
amount determined in subparagraph (A) of this paragraph.
(g) Credit for city pass-through entity tax. (1) A taxpayer who is a
partner or member of an electing city partnership and a taxpayer share-
holder of an electing city resident S corporation subject to tax under
article twenty-four-B of the tax law shall be entitled to a credit
against the tax imposed by such article. For purposes of this subdivi-
sion, the terms "electing city partnership," "electing city resident S
corporation," "city pass-through entity tax," and "direct share of city
pass-through entity tax" shall have the same meanings as used in article
twenty-four-B of the tax law.
(2) The amount of the credit shall be equal to the partner's, member's
or shareholder's direct share of the city pass-through entity tax.
(3) If a taxpayer is a partner, member or shareholder in more than one
electing city partnership and/or electing city resident S corporation
that is subject to tax pursuant to article twenty-four-B of the tax law,
the amount of the credit of such taxpayer shall be equal to the sum of
the amounts of such credits calculated pursuant to paragraph two of this
subdivision with regard to each entity in which such taxpayer has a
direct ownership interest.
(4) If the amount of the credit allowable pursuant to this subdivision
for any taxable year exceeds the tax due for such year pursuant to arti-
cle twenty-four-B of the tax law, the excess amount shall be treated as
an overpayment, to be credited or refunded, without interest.
(5) Limitation on credit. No credit shall be allowed to a taxpayer
under this subdivision unless the electing city partnership or electing
city resident S corporation provided sufficient information to identify
such taxpayer on its city pass-through entity tax return as required
under paragraph two of subsection (c) of section eight hundred seventy-
two of the tax law for an electing city partnership or paragraph two of
subsection (d) of section eight hundred seventy-two of the tax law for
A. 10030 888
an electing city resident S corporation. The credit allowed to a taxpay-
er under this subdivision shall not exceed the direct share of city
pass-through entity tax reported by such electing city partnership or
electing city resident S corporation attributable to such taxpayer on
such electing city partnership's or such electing city resident S corpo-
ration's return filed pursuant to section eight hundred seventy-two of
the tax law.
§ 11-1707 Meaning of terms. (a) General. Any term used in this chap-
ter shall have the same meaning as when used in a comparable context in
the laws of the United States relating to federal income taxes, unless a
different meaning is clearly required but such meaning shall be subject
to the exceptions or modifications prescribed in this chapter or by
statute. Any reference in this chapter to the laws of the United States
shall mean the provisions of the internal revenue code of nineteen
hundred eighty-six, unless a reference to the internal revenue code of
nineteen hundred fifty-four is clearly intended, and amendments thereto,
and other provisions of the laws of the United States relating to feder-
al income taxes, as the same may be or become effective at any time or
from time to time for the taxable year, as included and quoted in the
appendices, including any supplements and additions thereto, to this
chapter. Provided however, for taxable years beginning before January
first, two thousand twenty-two, any amendments made to the internal
revenue code of nineteen hundred eighty-six after March first, two thou-
sand twenty shall not apply to this chapter. Such quotation of the
aforesaid laws of the United States is intended to make them a part of
this chapter and to avoid constitutional uncertainties which might
result if such laws were merely incorporated by reference. The quotation
of a provision of the internal revenue code or of any other law of the
United States in such appendices shall not necessarily mean that it is
applicable or has relevance to this chapter.
(b) Marital or other status. An individual's marital or other status
under section 11-1701 of this chapter and section 11-1714 of this chap-
ter shall be the same as his or her marital or other status for purposes
of establishing the applicable federal income tax rates.
(c) "City" and "this city" as used in this chapter means the city of
Staten Island; "tax commission" as used in this chapter means the tax
commission of the state of New York; and "state" or "this state" as used
in this chapter means the state of New York.
SUBCHAPTER 2
RESIDENTS
§ 11-1711 City taxable income of a city resident individual. (a)
General. The city taxable income of a city resident individual shall be
his or her city adjusted gross income less his or her city deduction and
city exemptions, as determined under this chapter.
(b) Husband and wife.
(1) If the federal taxable income of husband or wife, both of whom
are residents, is determined on a separate federal return, their city
taxable incomes shall be separately determined.
(2) If the federal taxable income of husband and wife, both of whom
are residents, is determined on a joint federal return, their city taxa-
ble income shall be determined jointly.
(3) If neither husband or wife, both of whom are residents, files a
federal return:
A. 10030 889
(A) their tax shall be determined on their joint city taxable income,
or
(B) separate taxes may be determined on their separate city taxable
incomes if they both so elect.
(4) If either husband or wife is a resident and the other is a nonres-
ident, a separate tax shall be determined on the city taxable income of
the resident spouse on a separate form unless such husband and wife
determine their federal taxable income jointly and both elect to deter-
mine their joint city taxable income as if both were residents.
§ 11-1712 City adjusted gross income of a city resident individual.
(a) General. The city adjusted gross income of a city resident indi-
vidual means his or her federal adjusted gross income as defined in the
laws of the United States for the taxable year, with the modifications
specified in this section.
(b) Modifications increasing federal adjusted gross income. There
shall be added to federal adjusted gross income: (1) Interest income
on obligations of any state other than this state, or of a political
subdivision of any other such state unless created by compact or agree-
ment to which this state is a party, to the extent not properly includi-
ble in federal adjusted gross income;
(2) Interest or dividend income on obligations or securities of any
authority, commission, or instrumentality of the United States, which
the laws of the United States exempt from federal income tax but not
from state income taxes;
(3) Income taxes. (A) General. Income taxes imposed by this state or
any other taxing jurisdiction, to the extent deductible in determining
federal adjusted gross income and not credited against federal income
tax.
(B) Shareholders of S corporations. In the case of a shareholder of an
S corporation, with respect to taxes imposed upon or payable by the
corporation, the term "income taxes" in subparagraph (A) of this para-
graph shall also include the tax imposed under article nine-A of the tax
law, regardless of the measure of such tax, but shall not otherwise
include taxes imposed by this or any other state of the United States,
or any political subdivision of this or any other state, or the District
of Columbia.
(4) Interest on indebtedness incurred or continued to purchase or
carry obligations or securities the interest on which is exempt from tax
under this chapter, to the extent deductible in determining federal
adjusted gross income.
(5) Expenses paid or incurred during the taxable year for: (i) the
production or collection of income which is exempt from tax under this
chapter, or (ii) the management, conservation or maintenance of property
held for the production of such income, and the amortizable bond premium
for the taxable year on any bond the interest on which is exempt from
tax under this chapter, to the extent that such expenses and premiums
are deductible in determining federal adjusted gross income.
(6) In the case of a taxpayer who has exercised the election permit-
ted by subdivision (g) or (h) of this section, the amount or amounts
required by said subdivisions to be added to federal adjusted gross
income.
(7) In the case of a taxpayer who is a shareholder of a corporation
organized under article fifteen or authorized to do business in this
state under article fifteen-A of the business corporation law, for the
taxpayer's taxable years beginning before nineteen hundred eighty-eight,
the amount which is deductible by such corporation under paragraph one,
A. 10030 890
two or three of subsection (a) of section four hundred four of the
internal revenue code for its taxable year ending in or with such
taxpayer's taxable year for contributions paid on behalf of such taxpay-
er minus the lesser of fifteen thousand dollars or fifteen percent of
the earned income derived by such taxpayers from such corporation during
such taxpayer's taxable year. In the case of a taxpayer on whose behalf
contributions are paid under more than one plan to which this paragraph
applies or under a plan, contributions to which on his or her behalf are
subject to the limitations provided in subsection (e) of section four
hundred four of the internal revenue code, this paragraph shall apply
with respect to the aggregate of the contributions paid on his or her
behalf under all such plans.
(8) In the case of a taxpayer who is a shareholder of a corporation
organized under article fifteen or authorized to do business in this
state under article fifteen-A of the business corporation law, the
amount which is required to be paid as a tax by such corporation pursu-
ant to subsection (a) of section thirty-one hundred eleven of the inter-
nal revenue code with respect to the wages of such taxpayer for the
calendar year ending in or with such taxpayer's taxable year.
(10) The amount required to be added to federal adjusted gross income
pursuant to subdivision (i) of this section.
(14) The amount required to be added to federal adjusted gross income
pursuant to subdivision (1) of this section.
(15) The amount allowed as an exclusion or deduction for the special
additional mortgage recording taxes imposed by subdivision one-a of
section two hundred fifty-three of the tax law in determining federal
adjusted gross income for such taxable year.
(16) Unless the credit allowed pursuant to subsection (f) of section
six hundred six of the tax law is reflected in the computation of the
gain or loss so as to result in an increase in such gain or decrease in
such loss, for federal income tax purposes, from the sale or other
disposition of the property with respect to which the special additional
mortgage recording tax imposed pursuant to subdivision one-a of section
two hundred fifty-three of such law was paid, the amount of the special
additional mortgage recording tax imposed by subdivision one-a of
section two hundred fifty-three of such law which was paid and which is
reflected in the computation of the basis of the property so as to
result in a decrease in such gain or increase in such loss for federal
income tax purposes from the sale or other disposition of the property
with respect to which such tax was paid.
(17) The amount required to be added to federal adjusted gross income
pursuant to subdivision (r) of this section.
(18) In the case of a shareholder of an S corporation: (A) where the
election provided for in subsection (a) of section six hundred sixty of
the tax law is in effect with respect to such corporation, an amount
equal to his or her pro rata share of the corporation's reductions for
taxes described in paragraphs two and three of subsection (f) of section
thirteen hundred sixty-six of the internal revenue code, and
(B) in the case of a New York S termination year, subparagraph (A) of
this paragraph shall apply to the amount of reductions for taxes deter-
mined under subdivision (s) of this section.
(19) In the case of a shareholder of an S corporation: (A) where the
election provided for in subsection (a) of section six hundred sixty of
the tax law has not been made with respect to such corporation, any item
of loss or deduction of the corporation included in federal gross income
A. 10030 891
pursuant to section thirteen hundred sixty-six of the internal revenue
code, and
(B) in the case of a New York S termination year, subparagraph (A) of
this paragraph shall apply to the amounts of loss or deduction deter-
mined under subdivision (s) of this section.
(20) S corporation distributions to the extent not included in federal
gross income for the taxable year because of the application of section
thirteen hundred sixty-eight, subsection (e) of section thirteen hundred
seventy-one or subsection (c) of section thirteen hundred seventy-nine
of the internal revenue code which represent income not previously
subject to tax under this chapter because the election provided for in
subsection (a) of section six hundred sixty of the tax law had not been
made. Any such distribution treated in the manner described in paragraph
two of subsection (b) of section thirteen hundred sixty-eight of the
internal revenue code for federal income tax purposes shall be treated
as ordinary income for purposes of this chapter.
(21) In relation to the disposition of stock or indebtedness of a
corporation which elected under subchapter s of chapter one of the
internal revenue code for any taxable year of such corporation begin-
ning, in the case of a corporation taxable under article nine-A of the
tax law, after December thirty-first, nineteen hundred eighty, the
amount required to be added to federal adjusted gross income pursuant to
subdivision (n) of this section.
(22) The amounts required to be added to federal adjusted gross income
pursuant to subdivision (q) of this section.
(23) For taxable years beginning after December thirty-first, nineteen
hundred eighty-one, except with respect to property which is a qualified
mass commuting vehicle described in subparagraph (D) of paragraph eight
of subsection (f) of section one hundred sixty-eight of the internal
revenue code, relating to qualified mass commuting vehicles, any amount
which the taxpayer claimed as a deduction in computing its federal
adjusted gross income solely as a result of an election made pursuant to
the provisions of such paragraph eight as it was in effect for agree-
ments entered into prior to January first, nineteen hundred eighty-four;
(24) For taxable years beginning after December thirty-first, nineteen
hundred eighty-one, except with respect to property which is a qualified
mass commuting vehicle described in subparagraph (D) of paragraph eight
of subsection (f) of section one hundred sixty-eight of the internal
revenue code, relating to qualified mass commuting vehicles, any amount
which the taxpayer would have been required to include in the computa-
tion of its federal adjusted gross income had it not made the election
permitted pursuant to such paragraph eight as it was in effect for
agreements entered into prior to January first, nineteen hundred eight-
y-four;
(25) For taxable years beginning after December thirty-first, nineteen
hundred eighty-one, except with respect to recovery property subject to
the provisions of section two hundred eighty-F of the internal revenue
code and recovery property placed in service in this state in taxable
years beginning after December thirty-first, nineteen hundred eighty-
four, the amount allowable as a deduction under section one hundred
sixty-eight of the internal revenue code;
(25) In the case of property placed in service in taxable years begin-
ning before nineteen hundred ninety-four, for taxable years beginning
after December thirty-first, nineteen hundred eighty-one, except with
respect to property subject to the provisions of section two hundred
eighty-F of the internal revenue code and property subject to the
A. 10030 892
provisions of section one hundred sixty-eight of the internal revenue
code which is placed in service in this state in taxable years beginning
after December thirty-first, nineteen hundred eighty-four, the amount
allowable as a deduction determined under section one hundred sixty-
eight of the internal revenue code.
(26) The amount of member or employee contributions to a retirement
system or pension fund picked up or paid by the employer pursuant to
subdivision f of section five hundred seventeen or subdivision d of
section six hundred thirteen of the retirement and social security law
or section 13-225.1, 13-327.1, 13-125.1, 13-125.2 or 13-521.1 of title
thirteen of the code of the preceding municipality or subdivision nine-
teen of section twenty-five hundred seventy-five of the education law.
(26-a) The amount of member or employee contributions to a retirement
system or pension fund picked up or paid by the employer for members of
the Manhattan and Bronx surface transportation authority pension plan
and treated as employer contributions in determining income tax treat-
ment under subdivision (h) of section four hundred fourteen of the
Internal Revenue Code.
(27) Upon the disposition of recovery property to which paragraph
twenty-six of subdivision (c) of this section applies, the amount, if
any, by which the aggregate of the modifications described in such para-
graph twenty-six attributable to such property exceeds the aggregate of
the modifications described in paragraph twenty-five of this subdivision
attributable to such property; and
(27) Upon the disposition of property to which paragraph twenty-six of
subdivision (c) of this section applies, the amount, if any, by which
the aggregate of the modifications described in such paragraph twenty-
six attributable to such property exceeds the aggregate of the modifica-
tions described in paragraph twenty-five of this subdivision attribut-
able to such property.
(29) When gain from the sale or other disposition of property is
included in federal gross income, the amount of reduction in the basis
of such property attributable to credit for solar and wind energy
systems pursuant to paragraph nine of subsection (g) of section six
hundred six of the tax law; but for taxable years beginning before nine-
teen hundred eighty-seven, if such gain affects the determination of a
net capital gain for federal income tax purposes, forty percent of such
amount.
(31) The amount deducted or deferred from an employee's salary under a
flexible benefits program established pursuant to section twenty-three
of the general municipal law or section one thousand two hundred ten-a
of the public authorities law.
(32) The amount by which an employee's salary is reduced pursuant to
the provisions of subdivision b of section 12-126.1 and subdivision b of
section 12-126.2 of the code of the preceding municipality.
(33) Real property taxes paid on qualified agricultural property and
deducted in determining federal adjusted gross income, to the extent of
the amount of the agricultural property tax credit allowed under
subsection (n) or (i) of section six hundred six of the tax law.
(34) The amount of any deduction allowed pursuant to section one
hundred ninety-nine of the internal revenue code.
(35) The amount of any federal deduction for taxes imposed under arti-
cle twenty-three of the tax law.
(36) In the case of a beneficiary of a trust that, in any tax year
after its creation including its first tax year, was not subject to tax
pursuant to subparagraph (D) of paragraph three of subdivision (b) of
A. 10030 893
section 11-1705 of this chapter, except for an incomplete gift non-gran-
tor trust, as defined by paragraph thirty-seven of this subdivision, the
amount described in the first sentence of section six hundred sixty-sev-
en of the internal revenue code for the tax year to the extent not
already included in federal gross income for the tax year, except that,
in computing the amount to be added under this paragraph, such benefici-
ary shall disregard (i) subsection (c) of section six hundred sixty-five
of the internal revenue code; (ii) the income earned by such trust in
any tax year in which the trust was subject to tax under this article;
and (iii) the income earned by such trust in a taxable year prior to
when the beneficiary first became a resident of the city or in any taxa-
ble year starting before January first, two thousand fourteen. Except
as otherwise provided in this paragraph, all of the provisions of the
internal revenue code that are relevant to computing the amount
described in the first sentence of subsection (a) of section six hundred
sixty-seven of the internal revenue code shall apply to the provisions
of this paragraph with the same force and effect as if the language of
those internal revenue code provisions had been incorporated in full
into this paragraph, except to the extent that any such provision is
either inconsistent with or not relevant to this paragraph.
(37) In the case of a taxpayer who transferred property to an incom-
plete gift non-grantor trust, the income of the trust, less any
deductions of such trust, to the extent such income and deductions of
such trust would be taken into account in computing the taxpayer's
federal taxable income if such trust in its entirety were treated as a
grantor trust for federal tax purposes. For purposes of this paragraph,
an "incomplete gift non-grantor trust" means a resident trust that meets
the following conditions: (i) the trust does not qualify as a grantor
trust under section six hundred seventy-one through six hundred seven-
ty-nine of the internal revenue code, and (ii) the grantor's transfer of
assets to the trust is treated as an incomplete gift under section twen-
ty-five hundred eleven of the internal revenue code, and the regulations
thereunder.
(38) The amount contributed to any or all of the following accounts
within the charitable gifts trust fund set forth in section ninety-two-
gg of the state finance law, to the extent the amount is claimed as an
itemized deduction pursuant to section six hundred fifteen of the tax
law: the health charitable account established by paragraph a of subdi-
vision four of section ninety-two-gg of the state finance law, or the
elementary and secondary education charitable account established by
paragraph b of subdivision four of section ninety-two-gg of the state
finance law.
(39) The amount of any gain excluded from federal gross income for the
taxable year by subparagraph (A) of paragraph (1) of subsection (a) of
section one thousand four hundred-Z-two of the internal revenue code.
(c) Modifications reducing federal adjusted gross income. There
shall be subtracted from federal adjusted gross income:
(1) Interest income on obligations of the United States and its
possessions to the extent includible in gross income for federal income
tax purposes; such interest income shall include the amount received as
dividends from a regulated investment company, as defined in section
eight hundred fifty-one of the internal revenue code, which has been
designated as the amount of such interest income in a written notice to
shareholders not later than sixty days following the close of its taxa-
ble year; provided that, at the close of each quarter of the taxable
year of such regulated investment company, at least fifty percent of the
A. 10030 894
value of its total assets, as defined in subsection (c) of section eight
hundred fifty-one of the internal revenue code, consists of obligations
of the United States and its possessions. The aggregate amount so desig-
nated by the regulated investment company for its taxable year shall not
exceed the amount determined by multiplying the total distributions paid
by such regulated investment company to its shareholders with respect to
that taxable year, attributable to income earned in that year, including
any such distributions paid after the close of the taxable year, as
described in section eight hundred fifty-five of the internal revenue
code, by the ratio that the interest income received in that taxable
year on obligations of the United States and its possessions, after
reduction for the deductions and expenses directly or indirectly attrib-
utable thereto, bears to the investment company taxable income of such
regulated investment company for such taxable year, determined without
regard to subparagraph (D) of paragraph two of subsection (b) of section
eight hundred fifty-two of the internal revenue code;
(2) Interest or dividend income on obligations or securities of any
authority, commission or instrumentality of the United States to the
extent includible in gross income for federal income tax purposes but
exempt from state income taxes under the laws of the United States;
(3) (i) Pensions to officers and employees of this state, its subdivi-
sions and agencies, to the extent includible in gross income for federal
income tax purposes;
(ii) Pensions to officers and employees of the United States of Ameri-
ca, any territory or possession or political subdivision of such terri-
tory or possession, the District of Columbia, or any agency or instru-
mentality of such, to the extent includible in gross income for federal
income tax purposes;
(3-a) Pensions and annuities received by an individual who has
attained the age of fifty-nine and one-half, not otherwise excluded
pursuant to paragraph three of this subdivision, to the extent includi-
ble in gross income for federal income tax purposes, but not in excess
of twenty thousand dollars, which are periodic payments attributable to
personal services performed by such individual prior to his or her
retirement from employment, which arise: (i) from an employer-employee
relationship or (ii) from contributions to a retirement plan which are
deductible for federal income tax purposes. However, the term "pensions
and annuities" shall also include distributions received by an individ-
ual who has attained the age of fifty-nine and one-half from an individ-
ual retirement account or an individual retirement annuity, as defined
in section four hundred eight of the internal revenue code, and distrib-
utions received by an individual who has attained the age of fifty-nine
and one-half from self-employed individual and owner-employee retirement
plans which qualify under section four hundred one of the internal
revenue code, whether or not the payments are periodic in nature. Never-
theless, the term "pensions and annuities" shall not include any lump
sum distribution, as defined in subparagraph (A) of paragraph four of
subsection (e) of section four hundred two of the internal revenue code
and taxed under section six hundred three of the tax law. Where a
husband and wife file a joint city personal income tax return, the
modification provided for in this paragraph shall be computed as if they
were filing separate city personal income tax returns. Where a payment
would otherwise come within the meaning of the term "pensions and annui-
ties" as set forth in this paragraph except that such individual is
deceased, such payment shall, nevertheless, be treated as a pension or
A. 10030 895
annuity for purposes of this paragraph if such payment is received by
such individual's beneficiary.
(3-b) (i) Disability income included in federal gross income, to the
extent that such disability income would have been excluded from federal
gross income pursuant to the provisions of subsection (d) of section one
hundred five of the internal revenue code of nineteen hundred fifty-four
had such provisions continued in effect for taxable years commencing
after December thirty-first, nineteen hundred eighty-three as they were
in effect immediately prior to the repeal of such subsection. Notwith-
standing the provisions of this subparagraph, the sum of disability
income excluded pursuant to this paragraph, and pension and annuity
income excluded pursuant to paragraph three-a of this subdivision, shall
not exceed twenty thousand dollars.
(ii) Notwithstanding subdivision (f) of this section, if a husband and
wife determine their federal income tax on a joint return but are
required to determine their city income taxes separately, the amounts of
exclusion allowed under subparagraph (i) of this paragraph shall be
determined in the same joint manner as such amounts would have been
determined under the provisions of paragraph five of subsection (d) of
section one hundred five of the internal revenue code as such provisions
were in effect immediately prior to the repeal of such subsection, but
shall be attributed for city income tax purposes to the spouse who would
have been required to report any such amount as income if the spouses
had determined their federal income taxes separately.
(iii) Where a husband and wife file a joint city income tax return,
the twenty thousand dollar limitation provided in subparagraph (i) of
this paragraph shall be applied as if they were filing separate city
income tax returns.
(3-c) Social security benefits to the extent includible in gross
income for federal income tax purposes pursuant to section eighty-six of
the internal revenue code.
(4) The portion of any gain, from the sale or other disposition of
property having a higher adjusted basis for New York state income tax
purposes than for federal income tax purposes on the last day of the
last taxable year for which article sixteen of the tax law imposes tax,
that does not exceed such difference in basis.
(5) The amount necessary to prevent the taxation under this chapter
of any annuity or other amount of income or gain which was properly
included in income or gain and was taxable under article sixteen of the
tax law to the taxpayer, or to a decedent by reason of whose death the
taxpayer acquired the right to receive the income or gain, or to a trust
or estate from which the taxpayer received the income or gain.
(6) Interest or dividend income on obligations or securities to the
extent exempt from income tax under the laws of this state authorizing
the issuance of such obligations on securities but includible in gross
income for federal income tax purposes.
(7) The amount of any refund or credit for overpayment of income
taxes imposed by this city, any other taxing jurisdiction, or any taxes
imposed by article twenty-three of the tax law to the extent properly
included in gross income for federal income tax purposes.
(8) Compensation received for active service in the armed forces of
the United States on or after October first, nineteen hundred sixty-one,
and prior to September first, nineteen hundred sixty-two; provided,
however, that the amount of such compensation to be deducted shall not
exceed one hundred dollars for each month of the taxable year, subse-
quent to September, nineteen hundred sixty-one, during any part of which
A. 10030 896
month the taxpayer was engaged in such service. For the purposes of
this paragraph, the words "active service in the armed forces of the
United States" shall mean active duty, other than for training, in the
army, navy, including the marine corps, air force or coast guard of the
United States as defined in title ten of the United States Code.
(8-a) Compensation and bonuses received for active service in the
armed forces of the United States while a prisoner of war or missing in
action during the hostilities in Vietnam, to the extent includible in
gross income for federal income tax purposes.
(9) Interest on indebtedness incurred or continued to purchase or
carry obligations or securities the interest on which is subject to tax
under this chapter but exempt from federal income tax, to the extent
that such interest on indebtedness is not deductible in determining
federal adjusted gross income and is attributable to a trade or business
carried on by the taxpayer.
(10) Ordinary and necessary expenses paid or incurred during the
taxable year for: (i) the production or collection of income which is
subject to tax under this chapter but exempt from federal income tax, or
(ii) the management, conservation or maintenance of property held for
the production of such income, and the amortizable bond premium for the
taxable year on any bond the interest on which is subject to tax under
this chapter but exempt from federal income tax, to the extent that such
expenses and premiums are not deductible in determining federal adjusted
gross income and are attributable to a trade or business carried on by
the taxpayer.
(11) In the case of a taxpayer who has exercised the election permit-
ted by subdivision (g) or (h) of this section, the amount or amounts
required by said subdivisions to be subtracted from federal adjusted
gross income.
(12) The amount necessary to prevent the taxation of amounts properly
included in New York adjusted gross income in prior taxable years in
accordance with paragraph seven of subdivision (b) of this section.
(13) The amount required to be subtracted from federal adjusted gross
income pursuant to subdivision (i) of this section.
(14) The amount that may be subtracted from federal adjusted gross
income pursuant to subdivision (j) of this section.
(15) That portion of wages or salaries paid or incurred for the taxa-
ble year for which a deduction is not allowed pursuant to the provisions
of section two hundred eighty-C of the internal revenue code.
(19) The amount which may be subtracted from federal adjusted gross
income pursuant to subdivision (r) of this section.
(20) The amounts which may be subtracted from federal adjusted gross
income pursuant to subdivision (o) of this section.
(21) In relation to the disposition of stock or indebtedness of a
corporation which elected under subchapter s of chapter one of the
internal revenue code for any taxable year of such corporation begin-
ning, in the case of a corporation taxable under article nine-A of the
tax law, after December thirty-first, nineteen hundred eighty, the
amounts required to be subtracted from federal adjusted gross income
pursuant to subdivision (n) of this section.
(22) In the case of a shareholder of an S corporation: (A) where the
election provided for in subsection (a) of section six hundred sixty of
the tax law has not been made with respect to such corporation, any item
of income of the corporation included in federal gross income pursuant
to section thirteen hundred sixty-six of the internal revenue code, and
A. 10030 897
(B) in the case of a New York S termination year, subparagraph (A) of
this paragraph shall apply to the amounts of income determined under
subdivision (s) of this section.
(23) The amounts which may be subtracted from federal adjusted gross
income pursuant to subdivision (p) of this section.
(24) For taxable years beginning after December thirty-first, nineteen
hundred eighty-one, except with respect to property which is a qualified
mass commuting vehicle described in subparagraph (D) of paragraph eight
of subsection (f) of section one hundred sixty-eight of the internal
revenue code, relating to qualified mass commuting vehicles, any amount
which is included in the taxpayer's federal adjusted gross income solely
as a result of an election made pursuant to the provisions of such para-
graph eight as it was in effect for agreements entered into prior to
January first, nineteen hundred eighty-four;
(25) For taxable years beginning after December thirty-first, nineteen
hundred eighty-one, except with respect to property which is a qualified
mass commuting vehicle described in subparagraph (D) of paragraph eight
of subsection (f) of section one hundred sixty-eight of the internal
revenue code, relating to qualified mass commuting vehicles, any amount
which the taxpayer could have excluded from federal adjusted gross
income had it not made the election provided for in such paragraph eight
as it was in effect for agreements entered into prior to January first,
nineteen hundred eighty-four;
(26) For taxable years beginning after December thirty-first, nineteen
hundred eighty-one, except with respect to recovery property subject to
the provisions of section two hundred eighty-F of the internal revenue
code and recovery property placed in service in this state in taxable
years beginning after December thirty-first, nineteen hundred eighty-
four, the amount allowable as the depreciation deduction under section
one hundred sixty-seven of the internal revenue code as such section
would have applied to property placed in service on December thirty-
first, nineteen hundred eighty;
(26) In the case of property placed in service in taxable years begin-
ning before nineteen hundred ninety-four, for taxable years beginning
after December thirty-first, nineteen hundred eighty-one, except with
respect to property subject to the provisions of section two hundred
eighty-F of the internal revenue code and property subject to the
provisions of section one hundred sixty-eight of the internal revenue
code which is placed in service in this state in taxable years beginning
after December thirty-first, nineteen hundred eighty-four, an amount
with respect to property which is subject to the provisions of section
one hundred sixty-eight of the internal revenue code equal to the amount
allowable as the depreciation deduction under section one hundred
sixty-seven of the internal revenue code as such section would have
applied to property placed in service on December thirty-first, nineteen
hundred eighty.
(28) Upon the disposition of recovery property to which paragraph
twenty-six of this subdivision applies, the amount, if any, by which the
aggregate of the modifications described in paragraph twenty-five of
subdivision (b) of this section attributable to such property exceeds
the aggregate of the modifications described in paragraph twenty-six of
this subdivision attributable to such property.
(28) Upon the disposition of property to which paragraph twenty-six of
this subdivision applies, the amount, if any, by which the aggregate of
the modifications described in paragraph twenty-five of subdivision (b)
of this section attributable to such property exceeds the aggregate of
A. 10030 898
the modifications described in paragraph twenty-six of this subdivision
attributable to such property.
(29) Deduction for two-earner married couples. (A) For the taxable
year beginning in nineteen hundred eighty-seven, in the case of a
husband and wife who each have qualified earned income and who have
filed a joint return under subdivision (b) of section 11-1751 of this
chapter for the taxable year, an amount equal to ten percent of the
lesser of:
(i) thirty thousand dollars or
(ii) the qualified earned income of the spouse with the lower quali-
fied earned income for such taxable year.
(B) For purposes of this paragraph, eligibility for the deduction
provided for herein and the term qualified earned income shall be deter-
mined in the manner such eligibility and such qualified earned income
would have been determined pursuant to the provisions of section two
hundred twenty-one of the internal revenue code of nineteen hundred
fifty-four had such provisions continued in effect for taxable years
commencing after December thirty-first, nineteen hundred eighty-six as
they were in effect immediately prior to the repeal of such section.
Provided, however, the determination of such qualified earned income
shall be made with regard only to the items therein included in city
adjusted gross income, with such adjusted gross income determined with-
out regard to this paragraph, and only with regard to the deductions and
exclusions which are of the type properly allowable to or chargeable
against such qualified earned income in such taxable year.
(30) The amount received by any person as an accelerated payment or
payments of part or all of the death benefit or special surrender value
under a life insurance policy as a result of any of the diagnoses speci-
fied in subparagraph (A) or (B) of paragraph one of subsection (a) of
section one thousand one hundred thirteen of the insurance law, and the
amount received by any person as a viatical settlement pursuant to the
provisions of article seventy-eight of the insurance law, to the extent
includible in gross income for federal income tax purposes.
(32) The portion of the fees paid during the taxable year by a taxpay-
er who is a resident of a continuing care retirement community, issued a
certificate of authority pursuant to article forty-six of the public
health law, attributable to the cost of providing long term care bene-
fits pursuant to a continuing care contract. The portion of the fees so
attributable shall be determined in accordance with regulations promul-
gated by the superintendent of insurance. The deduction may not exceed
the limitation that would be applicable to the taxpayer for the taxable
year, with respect to eligible long term care premiums, determined under
paragraph ten of subsection (d) of section two hundred thirteen of the
internal revenue code.
(33) Distributions, to the extent includible in adjusted gross income
for federal income tax purposes, made to the taxpayer because of his or
her status as a victim of Nazi persecution, as defined in P.L. 103-286,
or as a spouse or a descendant in need of such victim.
(34) Items of income, to the extent includible in gross income for
federal income tax purposes, attributable to, derived from or in any way
related to assets stolen from, hidden from or otherwise lost to a victim
of Nazi persecution, as defined in P.L. 103-286, immediately prior to,
during and immediately after World War II, including, but not limited to
interest on the proceeds receivable as insurance under policies issued
to a victim of Nazi persecution, as defined in P.L. 103-286, by European
insurance companies immediately prior to and during World War II.
A. 10030 899
Provided, however, this subtraction from federal adjusted income does
not apply to assets acquired with such assets or with the proceeds from
the sale of such assets. Provided, further, this paragraph is only
applicable to a taxpayer who was the first recipient of such assets
after their recovery and who is a victim of Nazi persecution, as defined
in P.L. 103-286, or a spouse or a descendant of such victim.
(35) As provided in section thirty-eight of the tax law, any income or
gain, to the extent it is included in federal adjusted gross income of
an individual who is the sole proprietor of a qualified entity or a
member of a limited liability company, a partner in a partnership or a
shareholder in a New York subchapter S corporation that is a qualified
entity as defined in section sixteen-v of the New York state urban
development corporation act attributable to the operations of such qual-
ified entity at its location in or as part of a New York state inno-
vation hot spot, as defined in paragraph (a) of subdivision one of
section sixteen-v of the New York state urban development corporation
act.
(36) (A) In the case of a taxpayer who is a small business or a
taxpayer who is a member, partner, or shareholder of a limited liability
company, partnership, or New York S corporation, respectively, that is a
small business, who or which has business income and/or farm income as
defined in the laws of the United States, an amount equal to fifteen
percent of the net items of income, gain, loss and deduction attribut-
able to such business or farm entering into federal adjusted gross
income, but not less than zero.
(B) (i) For the purposes of this paragraph, the term small business
shall mean: (I) a sole proprietor who employs one or more persons during
the taxable year and who has net business income or net farm income of
greater than zero but less than two hundred fifty thousand dollars;
(II) a limited liability company, partnership, or New York S corpo-
ration that during the taxable year employs one or more persons and has
net farm income that is greater than zero but less than two hundred
fifty thousand dollars; or
(III) a limited liability company, partnership, or New York S corpo-
ration that during the taxable year employs one or more persons and has
New York gross business income attributable to a non-farm business that
is greater than zero but less than one million five hundred thousand
dollars.
(ii) For purposes of this paragraph, the term New York gross business
income shall mean: (I) in the case of a limited liability company or a
partnership, New York source gross income as defined in subparagraph (b)
or paragraph three of subsection (c) of section six hundred fifty-eight
of the tax law, and, (II) in the case of a New York S corporation, New
York receipts included in the numerator of the apportionment factor
determined under section two hundred ten-A of the tax law for the taxa-
ble year.
(C) To qualify for this modification in relation to a non-farm small
business that is a limited liability company, partnership, or New York S
corporation, the taxpayer's income attributable to the net business
income from its ownership interests in non-farm limited liability compa-
nies, partnerships, or New York S corporations must be less than two
hundred fifty thousand dollars.
(37) Any wages received by an individual as an employee of a business
located within a tax-free NY area during the first five years of such
business's ten year taxable period specified in subdivision (a) of
section thirty-nine of the tax law to the extent included in federal
A. 10030 900
adjusted gross income and allowed under section thirty-nine of the tax
law. During the second five years of such business's ten year taxable
period, the first two hundred thousand dollars of such wages in the case
of a taxpayer filing as a single individual, the first two hundred fifty
thousand dollars of such wages in the case of a taxpayer filing as a
head of household, and three hundred thousand dollars of such wages in
the case of a taxpayer filing a joint return, to the extent included in
federal adjusted gross income and allowed under section thirty-nine of
the tax law.
(38) The amount of any award paid to a volunteer firefighter or volun-
teer ambulance worker from a length of service defined contribution plan
or defined benefit plan as provided for in articles eleven-A, eleven-AA,
eleven-AAA and eleven-AAAA of the general municipal law, to the extent
that such award is includable in gross income for federal income tax
purposes; provided, however, that such award is not distributed in the
form of a lump sum distribution, as defined in subparagraph (D) of para-
graph four of subsection (e) of section four hundred two of the internal
revenue code and taxed under section six hundred three of the tax law;
and provided, further, that such award is not distributed to a taxpayer
who has not attained the age of fifty-nine and one-half years.
(39) The amount of any gain added back to federal adjusted gross
income in a previous taxable year pursuant to paragraph thirty-nine of
subdivision (b) of this section that is included in federal gross income
for the taxable year.
(d) Modification for city fiduciary adjustment. There shall be added
to or subtracted from federal adjusted gross income, as the case may be,
the taxpayer's share, as beneficiary of an estate or trust, of the city
fiduciary adjustment determined under section 11-1719 of this subchap-
ter.
(e) Modifications of partners and shareholders of S corporations. (1)
Partners and shareholders of S corporations which are not New York C
corporations. The amounts of modifications required to be made under
this section by a partner or by a shareholder of an S corporation, other
than an S corporation which is a New York C corporation, which relate to
partnership or S corporation items of income, gain, loss or deduction
shall be determined under section 11-1717 of this subchapter and, in the
case of a partner of a partnership doing an insurance business as
members of the New York insurance exchange described in section six
thousand two hundred one of the insurance law, under section 11-1717.1
of this subchapter.
(2) Shareholders of S corporations which are New York C corporations.
In the case of a shareholder of an S corporation which is a New York C
corporation, the modifications under this section which relate to the
corporation's items of income, loss and deduction shall not apply,
except for the modifications provided under paragraph nineteen of subdi-
vision (b) and paragraph twenty-two of subdivision (c) of this section.
(3) New York S termination year. In the case of a New York S termi-
nation year, the amounts of the modifications required under this
section which relate to the S corporation's items of income, loss,
deduction and reductions for taxes, as described in paragraphs two and
three of subsection (f) of section thirteen hundred sixty-six of the
internal revenue code, shall be adjusted in the same manner that the S
corporation's items are adjusted under subdivision (s) of this section.
(f) Husband and wife. If husband and wife determine their federal
income tax on a joint return but are required to determine their city
income taxes separately, they shall determine their city adjusted gross
A. 10030 901
incomes separately as if their federal adjusted gross incomes had been
determined separately.
(g) Optional modifications. Subject to the conditions provided in
paragraphs three and four of this subdivision, at the election of the
taxpayer there shall also be subtracted from federal adjusted gross
income either or both of the items set forth in paragraphs one and two
of this subdivision, except that only one of such items shall be
subtracted with respect to any one item of property, and except that a
subtraction of the item set forth in such paragraph two may not be taken
with respect to taxable years commencing on or after January first,
nineteen hundred eighty-nine.
(1) Depreciation with respect to any property such as described in
paragraph three or four of this subdivision, and subject to the condi-
tions provided therein, not exceeding twice the depreciation allowed
with respect to the same property for federal income tax purposes. Such
modification shall be allowed only upon condition that any depreciation
or amortization allowed with respect to the same property in determining
federal adjusted gross income shall be added to federal adjusted gross
income pursuant to paragraph six of subdivision (b) of this section.
The total of all deductions allowed pursuant to this paragraph in any
taxable year or years with respect to any property described in para-
graph three of this subdivision shall not exceed its cost or other basis
and, with respect to property described in paragraph four of this subdi-
vision, which is used in a business carried on both within and without
the state shall not exceed its cost or other basis multiplied by a
percentage of the excess of the taxpayer's business income over its
business deductions allocated to this state for the first year such
depreciation is deducted. Such percentage shall be determined by appor-
tionment and allocation under regulations of the tax commission.
(2) Expenditures paid or incurred during the taxable year for the
construction, reconstruction, erection or acquisition of any property
such as described in paragraph three or four of this subdivision, and
subject to the conditions provided therein, which is used or to be used
for purposes of research and development in the experimental or labora-
tory sense. Such purposes shall not be deemed to include the ordinary
testing or inspection of materials or products for quality control,
efficiency surveys, management studies, consumer surveys, advertising,
promotions or research in connection with literary, historical or simi-
lar projects. Such modification shall be allowed only on condition
that, with respect to property described in paragraph four of this
subdivision, which is used in a business carried on both within and
without the state the deduction shall not exceed the expenditures multi-
plied by a percentage of the excess of the taxpayer's business income
over its business deductions allocated to this state for the first year
such expenditures are deducted. Such percentage shall be determined by
apportionment and allocation under regulations of the tax commission,
and for the taxable year and all succeeding taxable years, any
deductions allowed for federal income tax purposes on account of such
expenditures or on account of depreciation of the same property, except
to the extent that its basis may be attributable to factors other than
such expenditures, shall be added to federal adjusted gross income
pursuant to paragraph six of subdivision (b) of this section, or in case
a modification is allowable pursuant to this paragraph for only a part
of such expenditures, on condition that a proportionate part of any such
deductions allowed for federal income tax purposes be added to federal
adjusted gross income. With respect to property which is used or to be
A. 10030 902
used for research and development only in part, or during only part of
its useful life, the modification allowable pursuant to this paragraph
shall be limited to a proportionate part of the expenditures relating
thereto. If a modification shall have been allowed pursuant to this
paragraph for all or part of such expenditures with respect to any prop-
erty, and such property is used for purposes other than research and
development to a greater extent than originally reported, the taxpayer
shall report such use in his or her return for the first taxable year
during which it occurs, and the tax commission may recompute the tax for
the year or years for which such deduction was allowed, and may assess
any additional tax resulting from such recomputation within the time
fixed by subdivision (c) of section 11-1783 of this chapter.
(3) For purposes of this paragraph, such modifications shall be
allowed only with respect to tangible property which is depreciable
pursuant to section one hundred sixty-seven of the internal revenue
code, having a situs in this state and used in the taxpayer's trade or
business: (A) constructed, reconstructed or erected after December thir-
ty-first, nineteen hundred sixty-three, pursuant to a contract which
was, on or before December thirty-first, nineteen hundred sixty-seven,
and at all times thereafter, binding on the taxpayer or, property, the
physical construction, reconstruction or erection of which began on or
before December thirty-first, nineteen hundred sixty-seven or which
began after such date pursuant to an order placed on or before December
thirty-first, nineteen hundred sixty-seven, and then only with respect
to that portion of the basis thereof or the expenditures relating there-
to which is properly attributable to such construction, reconstruction
or erection after December thirty-first, nineteen hundred sixty-three,
or (B) acquired after December thirty-first, nineteen hundred sixty-
three, pursuant to a contract which was, on or before December thirty-
first, nineteen hundred sixty-seven, and at all times thereafter, bind-
ing on the taxpayer or pursuant to an order placed on or before December
thirty-first, nineteen hundred sixty-seven, by purchase as defined in
subsection (d) of section one hundred seventy-nine of the internal
revenue code, if the original use of such property commenced with the
taxpayer, commenced in this state and commenced after December thirty-
first, nineteen hundred sixty-three, or (C) acquired, constructed,
reconstructed, or erected subsequent to December thirty-first, nineteen
hundred sixty-seven, if such acquisition, construction, reconstruction
or erection is pursuant to a plan of the taxpayer which was in existence
December thirty-first, nineteen hundred sixty-seven and not thereafter
substantially modified, and such acquisition, construction, recon-
struction or erection would qualify under the rules in paragraph four,
five or six of subdivision (h) of section forty-eight of the internal
revenue code provided all references in such paragraphs four, five and
six to the dates October nine, nineteen hundred sixty-six, and October
ten, nineteen hundred sixty-six, shall be read as December thirty-first,
nineteen hundred sixty-seven. A taxpayer shall be allowed a deduction
under clause (A), (B) or (C) of this paragraph only if the tangible
property shall be delivered or the construction, reconstruction or
erection shall be completed on or before December thirty-first, nineteen
hundred sixty-nine, except in the case of tangible property which is
acquired, constructed, reconstructed or erected pursuant to a contract
which was, on or before December thirty-first, nineteen hundred sixty-
seven, and at all times thereafter, binding on the taxpayer. However,
for any taxable year beginning on or after January first, nineteen
hundred sixty-eight, a taxpayer shall not be allowed a modification
A. 10030 903
under paragraph one of this subdivision with respect to tangible
personal property leased to any other person or corporation, provided,
any contract or agreement to lease or rent or for a license to use such
property shall be considered a lease. With respect to property which a
taxpayer uses for purposes other than leasing for part of a taxable year
and leases for a part of a taxable year, a modification under paragraph
one of this subdivision shall be allowed in proportion to the part of
the year such property is used by the taxpayer.
(4) For purposes of this paragraph, such modifications shall be
allowed only with respect to tangible property which is depreciable
pursuant to section one hundred sixty-seven of the internal revenue
code, having a situs in this state and used in the taxpayer's trade or
business. The modifications provided for in paragraph one of this
subdivision shall be allowed only with respect to tangible property
which is: (A) constructed, reconstructed or erected after December thir-
ty-first, nineteen hundred sixty-seven, pursuant to a contract which
was, on or before December thirty-first, nineteen hundred sixty-eight,
and at all times thereafter, binding on the taxpayer or, property, the
physical construction, reconstruction or erection of which began on or
before December thirty-first, nineteen hundred sixty-eight or which
began after such date pursuant to an order placed on or before December
thirty-first, nineteen hundred sixty-eight, and then only with respect
to that portion of the basis thereof or the expenditures relating there-
to which is properly attributable to such construction, reconstruction
or erection after December thirty-first, nineteen hundred sixty-three,
or (B) acquired after December thirty-first, nineteen hundred sixty-sev-
en, pursuant to a contract which was, on or before December thirty-
first, nineteen hundred sixty-eight, and at all times thereafter, bind-
ing on the taxpayer or pursuant to an order placed on or before December
thirty-first, nineteen hundred sixty-eight, by purchase as defined in
section one hundred seventy-nine (d) of the internal revenue code, if
the original use of such property commenced with the taxpayer, commenced
in this state and commenced after December thirty-first, nineteen
hundred sixty-seven, or (C) acquired, constructed, reconstructed, or
erected subsequent to December thirty-first, nineteen hundred sixty-
eight, if such acquisition, construction, reconstruction or erection is
pursuant to a plan of the taxpayer which was in existence December thir-
ty-first, nineteen hundred sixty-eight, and not thereafter substantially
modified, and such acquisition, construction, reconstruction or erection
would qualify under the rules in paragraph four, five or six of subdivi-
sion (h) of section forty-eight of the internal revenue code provided
all references in such paragraphs four, five and six to the dates Octo-
ber nine, nineteen hundred sixty-six, and October ten, nineteen hundred
sixty-six, shall be read as December thirty-first, nineteen hundred
sixty-eight. A taxpayer shall be allowed a deduction under clause (A),
(B) or (C) of the preceding sentence of this paragraph only if the
tangible property shall be delivered or the construction, reconstruction
or erection shall be completed on or before December thirty-first, nine-
teen hundred seventy, except in the case of tangible property which is
acquired, constructed, reconstructed or erected pursuant to a contract
which was, on or before December thirty-first, nineteen hundred sixty-
eight, and at all times thereafter binding on the taxpayer. The modifi-
cation provided for in paragraph two of this subdivision shall be
allowed only with respect to tangible property: (A) the construction,
reconstruction or erection of which is completed after December thirty-
first, nineteen hundred sixty-seven, and then only with respect to that
A. 10030 904
portion of the basis thereof or the expenditures relating thereto which
is properly attributable to such construction, reconstruction or
erection after December thirty-first, nineteen hundred sixty-three, or
(B) acquired after December thirty-first, nineteen hundred sixty-seven,
by purchase as defined in section one hundred seventy-nine (d) of the
internal revenue code, if the original use of such property commenced
with the taxpayer, commenced in this state and commenced after December
thirty-first, nineteen hundred sixty-three. Provided, however, a
modification under paragraph one of this subdivision shall be allowed
with respect to property described in this paragraph only on condition
that such property shall be principally used by the taxpayer in the
production of goods by manufacturing; processing; assembling; refining;
mining; extracting; farming; agriculture; horticulture; floriculture;
viticulture; or commercial fishing. Manufacturing shall mean the proc-
ess of working raw materials into wares suitable for use or which gives
new shapes, new qualities or new combinations to matter which already
has gone through some artificial process by the use of machinery, tools,
appliances and other similar equipment. Property used in the production
of goods shall include machinery, equipment or other tangible property
which is principally used in the repair and service of other machinery,
equipment or other tangible property used principally in the production
of goods and shall include all facilities used in the manufacturing
operation, including storage of material to be used in manufacturing and
of the products that are manufactured. At the option of the taxpayer,
air and water pollution control facilities which qualify for elective
deductions under subdivision (h) of this section may be treated, for
purposes of this paragraph, as tangible property principally used in the
production of goods by manufacturing; processing; assembling; refining;
mining; extracting; farming; agriculture; horticulture; floriculture;
viticulture; or commercial fishing, in which event, a deduction shall
not be allowed under such subdivision (h). However, for any taxable
year beginning on or after January first, nineteen hundred sixty-eight,
a taxpayer shall not be allowed a modification under paragraph one of
this subdivision with respect to tangible personal property leased to
any other person or corporation, provided, any contract or agreement to
lease or rent or for a license to use such property shall be considered
a lease. With respect to property which a taxpayer uses for purposes
other than leasing for part of a taxable year and leases for a part of a
taxable year, a modification under paragraph one of this subdivision
shall be allowed in proportion to the part of the year such property is
used by the taxpayer.
(5) If the modifications allowable for any taxable year pursuant to
this subdivision exceed the taxpayer's city adjusted gross income,
determined without the allowance of such modifications, the excess may
be carried over to the following taxable year or years and may be
subtracted from federal adjusted gross income for such year or years.
(6) In any taxable year when property is sold or otherwise disposed
of, with respect to which a modification has been allowed pursuant to
paragraph one or two of this subdivision, the basis of such property
shall be adjusted to reflect the modifications so allowed, and if the
basis as so adjusted is lower than the adjusted basis of the same prop-
erty for federal income tax purposes, there shall be added to federal
adjusted gross income the amount of the difference between such adjusted
bases.
(h) Optional modification for waste treatment facility expenditures.
For taxable years commencing prior to January first, nineteen hundred
A. 10030 905
eighty-nine, at the election of the taxpayer, there shall also be
subtracted from federal adjusted gross income expenditures paid or
incurred during the taxable year for the construction, reconstruction,
erection or improvement of industrial waste treatment facilities and air
pollution control facilities.
(1)(A) The term "industrial waste treatment facilities" shall mean
facilities for the treatment, neutralization, or stabilization of indus-
trial waste, as the term "industrial waste" is defined in section
17-0105 of the environmental conservation law, from a point immediately
preceding the point of such treatment, neutralization or stabilization
to the point of disposal, including the necessary pumping and transmit-
ting facilities, but excluding such facilities installed for the primary
purpose of salvaging materials which are usable in the manufacturing
process or are marketable.
(B) The term "air pollution control facilities" shall mean facilities
which remove, reduce, or render less noxious air contaminants emitted
from an air contamination source, as the terms "air contaminant" and
"air contamination source" are defined in section 19-0107 of the envi-
ronmental conservation law, from a point immediately preceding the point
of such removal, reduction or rendering to the point of discharge of
air, meeting emission standards as established by the air pollution
control board, but excluding such facilities installed for the primary
purpose of salvaging materials which are usable in the manufacturing
process or are marketable and excluding those facilities which rely for
their efficacy on dilution, dispersion or assimilation of air contam-
inants in the ambient air after emission.
(2) Such modifications shall be allowed only:
(A) with respect to tangible property which is depreciable, pursuant
to section one hundred sixty-seven of the internal revenue code, having
a situs in this state and used in the taxpayer's trade or business, the
construction, reconstruction, erection or improvement of which, in the
case of industrial waste treatment facilities, is initiated on or after
January first, nineteen hundred sixty-five, or which, in the case of air
pollution control facilities, is initiated on or after January first,
nineteen hundred sixty-six, and
(B) on condition that such facilities have been certified by the
commissioner of environmental conservation or his or her designated
representative, in the same manner as provided for in section 17-0707 or
19-0309 of the environmental conservation law, as applicable, as comply-
ing with the provisions of such environmental conservation law, the
state sanitary code and regulations, permits or orders promulgated
pursuant thereto, and
(C) on condition that for the taxable year and all succeeding taxable
years, any deductions allowed for federal income tax purposes for such
expenditures or for depreciation or amortization of the same property,
except to the extent that its basis may be attributable to factors other
than such expenditures, be added to federal adjusted gross income pursu-
ant to paragraph five of subdivision (b) of this section, or in case a
modification is allowable pursuant to this paragraph for only a part of
such expenditures, on condition that a proportionate amount of any such
deductions allowed for federal income tax purposes be added to federal
adjusted gross income, and
(D) where the election provided for in subdivision (g) of this
section has not been exercised in respect to the same property.
(3)(A) If expenditures in respect to an industrial waste treatment
facility or an air pollution control facility have been allowed as a
A. 10030 906
modification as provided herein and if within ten years from the end of
the taxable year in which such modification was allowed such property or
any part thereof is used for the primary purpose of salvaging materials
which are usable in the manufacturing process or are marketable, the
taxpayer shall report such change of use in its return for the first
taxable year during which it occurs, and the tax commission may recom-
pute the tax for the year or years for which such modification was
allowed, and may assess any additional tax resulting from such recompu-
tation within the time fixed by paragraph eight of subdivision (c) of
section 11-1783 of this chapter.
(B) If a modification is allowed as herein provided for expenditures
paid or incurred during any taxable year on the basis of a temporary
certificate of compliance issued pursuant to the environmental conserva-
tion law, and if the taxpayer fails to obtain a permanent certificate of
compliance upon completion of the facilities with respect to which such
temporary certificate was issued, the taxpayer shall report such failure
in its report for the taxable year during which such facilities are
completed, and the tax commission may recompute the tax for the year or
years for which such modification was allowed, and may assess any addi-
tional tax resulting from such recomputation within the time fixed by
paragraph eight of subdivision (c) of section 11-1783 of this chapter.
(C) If a modification is allowed as herein provided for expenditures
paid or incurred during any taxable year in respect to an air pollution
control facility on the basis of a certificate of compliance issued
pursuant to the environmental conservation law and the certificate is
revoked pursuant to section 19-0309 of the environmental conservation
law, the tax commission may recompute the tax for the year or years for
which the facility is not or was not in compliance with the applicable
provisions of the environmental conservation law, the state sanitary
code or codes, rules, regulations, permits or orders issued pursuant
thereto, and for which a modification was allowed, and may assess any
additional tax resulting from such recomputation within the time fixed
by paragraph eight of subdivision (c) of section 11-1783 of this chap-
ter.
(4) In any taxable year when property is sold or otherwise disposed
of, with respect to which a modification has been allowed pursuant to
this paragraph, such modification shall be disregarded in computing gain
or loss, and the gain or loss on the sale or other disposition of such
property shall be the gain or loss entering into the computation of
federal adjusted gross income for such taxable year.
(i) In the case of mines, oil and gas wells and other natural depos-
its, any allowance for percentage depletion pursuant to section six
hundred thirteen or section six hundred thirteen-A of the internal
revenue code, shall be added to federal adjusted gross income. However,
with respect to the property as to which such addition to federal
adjusted gross income is required, an allowance for depletion shall be
subtracted from federal adjusted gross income in the amount that would
be deductible under section six hundred eleven of such code if the
deduction for an allowance for depletion were computed without reference
to such section six hundred thirteen or section six hundred thirteen-A.
With respect to the computation of depletion pursuant to this subdivi-
sion, the basis for such computation shall be the basis for state income
tax purposes provided for in subsection (i) of section six hundred
twelve of the tax law. The portion of any gain from the sale or other
disposition of such property having a higher adjusted basis for city
income tax purposes than for federal income tax purposes, that does not
A. 10030 907
exceed such difference in basis, shall be subtracted from federal
adjusted gross income.
(j) Modification for nonpublic school tuition. (1) General. An indi-
vidual shall be entitled to subtract from his or her federal adjusted
gross income an amount shown in the table set forth in this paragraph
for his or her city adjusted gross income for the taxable year, computed
without the benefit of this modification, multiplied by the number of
his or her dependents, not exceeding three, attending a nonpublic school
on a full-time basis for at least four months during the regular school
year for the education of such dependent in grades one through twelve,
provided such individual is allowed an exemption under section 11-1716
of this chapter for such dependent. Provided, further, that the modifi-
cation under this paragraph may be taken only if such individual has
paid at least fifty dollars for each such dependent in tuition to such
nonpublic school for such education of such dependent. No taxpayer
shall be entitled to the modification provided for in this paragraph if
he or she claims a tuition reimbursement payment pursuant to article
twelve-A of the education law.
If city adjusted The amount allowable
gross income is: for each dependent is:
Less than $9,000 $1,000
9,000 -- 10,999 850
11,000 -- 12,999 700
13,000 -- 14,999 550
15,000 -- 16,999 400
17,000 -- 18,999 250
19,000 -- 20,999 150
21,000 -- 22,999 125
23,000 -- 24,999 100
25,000 and over -0-
(2) Husband and wife. In determining the applicable city adjusted
gross income of a husband and wife for purposes of the table set forth
in paragraph one of this subdivision, the city adjusted gross income of
a husband and wife shall be the aggregate of their city adjusted gross
incomes for the taxable year, determined without the benefit of the
modification provided for in this subdivision, and the number of depen-
dents with respect to which this modification may be claimed shall be no
more than three in the aggregate.
(3) Definitions. (A) "Tuition", as used in this subdivision, shall
mean the amount actually paid during the taxable year by the taxpayer
for the enrollment of a dependent during the regular school year at a
nonpublic school.
(B) "Nonpublic school", as used in this subdivision, shall mean any
non-profit elementary or secondary school in the state of New York,
other than a public school, which: (i) is providing instruction in
accordance with article seventeen and section thirty-two hundred four of
the education law, (ii) has not been found to be in violation of title
VI of the civil rights act of nineteen hundred sixty-four, 78 Stat. 252,
42 U.S.C. § 2000(d) and (iii) which is entitled to a tax exemption under
sections five hundred one (a) and five hundred one (c) (3) of the feder-
al internal revenue code of nineteen hundred fifty-four, as amended.
The commissioner of education shall furnish to the tax commission by
February first of each year, a certified list of nonpublic schools which
comply with clause (i) of this subparagraph for the preceding calendar
A. 10030 908
year and shall provide such other assistance with respect to whether
nonpublic schools come within clause (i) as the tax commission may
require.
(C) "Regular school year", as used in this subdivision, shall mean the
months of the taxable year exclusive of July and August.
(4) Additional information. Any claim for a modification under this
subdivision shall be accompanied by such information as the tax commis-
sion may require.
(k) Modification for contributions to a qualified higher education
fund. (1) A taxpayer may subtract from his or her federal adjusted
gross income amounts which during the taxable year are contributed by
him or her to a qualified higher education fund, as defined in paragraph
three of this subdivision, established by him or her, limited to the
product of seven hundred fifty dollars and the number of eligible bene-
ficiaries, as defined in subparagraph (C) of paragraph three of this
subdivision, as of the first or last day of the taxable year, whichever
yields the higher limit. Provided, however, that a taxpayer whose taxa-
ble year began on January first, nineteen hundred seventy-eight may
subtract from his or her federal adjusted gross income for such taxable
year, amounts contributed by him or her to a qualified higher education
fund during the fifteen month period beginning January first, nineteen
hundred seventy-eight and ending April fifteenth, nineteen hundred
seventy-nine. Contributions to a qualified higher education fund made
during the period beginning January first, nineteen hundred seventy-nine
and ending April fifteenth, nineteen hundred seventy-nine and subtracted
from a taxpayer's federal adjusted gross income for the taxable year
beginning January first, nineteen hundred seventy-eight shall be deemed
to have been made during such taxable year. However, such number of
eligible beneficiaries shall not include any individual who was a
student at an institution of higher education during the previous taxa-
ble year. For purposes of this paragraph, the term "student" shall have
the same meaning as that ascribed to it by paragraph four of subsection
(e) of section one hundred fifty-one of the internal revenue code,
except that the reference therein to "5 calendar months" shall be deemed
to be a reference to "3 calendar months."
(2) A taxpayer who establishes a qualified higher education fund may
subtract from his or her federal adjusted gross income amounts included
in gross income for federal income tax purposes by reason of any income
realized by the fund or because of any payment by the fund to, or on
behalf of, an eligible beneficiary for the purpose specified in clause
(i) of subparagraph (A) of paragraph three of this subdivision.
(3) For purposes of this subdivision, a qualified higher education
fund is a fund established pursuant to a written plan described in
subparagraph (A) of this paragraph, but only if the fund meets the
requirements of subparagraph (B) of this paragraph.
(A) For purposes of this subdivision a "plan" means a plan estab-
lished:
(i) solely for the purpose of defraying costs associated with attend-
ance subsequent to graduation or separation from secondary school at an
institution of higher education, as defined in subparagraph (F) of this
paragraph, of one or more eligible beneficiaries, as defined in subpara-
graph (C) of this paragraph, such costs to include: (I) applicable
tuition and fees, exclusive of fees levied as a penalty for laboratory
breakage, dormitory damage and similar fees, (II) room and board as
charged by the institution pursuant to a contract entered into by the
institution and a student or, if no such contract is entered into, an
A. 10030 909
amount not exceeding one thousand five hundred dollars per year, which
amount shall include any expenses of transportation, and (III) books,
supplies and equipment,
(ii) which provides that no distribution shall be made by the fund,
except upon termination thereof, other than to, or on behalf of, eligi-
ble beneficiaries for the purpose specified in clause (i) of this
subparagraph,
(iii) which provides that upon termination of the fund all assets of
the fund shall be distributed to the creator of the fund, to his or her
estate or to a trust established for the purpose of making contributions
to the fund, and
(iv) which prohibits contributions to the fund in excess of amounts
which may be subtracted from federal adjusted gross income under para-
graph one of this subdivision.
(B) A fund meets the requirements of this subparagraph only if:
(i) it constitutes a custodial account, the assets of which are held
by a bank, as defined in paragraph one of subsection (d) of section four
hundred one of the internal revenue code, an insurance company qualified
to do business in this state, or another person who demonstrates, to the
satisfaction of the tax commission, that the manner in which he or she
will hold the assets will be consistent with the requirements of this
subdivision, or
(ii) it is a trust.
In the case of a trust referred to in clause (ii) of this subpara-
graph, the assets may be held by a bank or other person who demonstrates
to the satisfaction of the tax commission that the manner in which he or
she will administer the trust will be consistent with the requirements
of this subdivision. Such a trust shall not be disqualified under this
subparagraph merely because a person other than the trustee so adminis-
tering the trust may be granted, under the trust instrument, the power
to control the investment of the trust funds either by directing invest-
ments, including reinvestments, disposals and exchanges, or by disap-
proving proposed investments, including reinvestments, disposals and
exchanges. Such a trust may use annuity, endowment or life insurance
contracts of a life insurance company exclusively as the funding media
of the trust, if so provided by regulations of the state tax commis-
sion, and if the life insurance company supplies annually such informa-
tion about trust transactions as the tax commission shall by regulations
prescribe. For purposes of this subdivision, the term "bank" shall have
the same meaning ascribed to it by the last sentence of paragraph one of
subsection (d) of section four hundred one of the internal revenue code.
(C) For purposes of this subdivision, the term "eligible beneficiary"
means a person:
(i) having a relationship to the creator of the fund specified in
paragraphs one, two, three or six of subsection (a) of section one
hundred fifty-two of the internal revenue code,
(ii) who is a dependent of the creator of the fund pursuant to section
one hundred fifty-two of the internal revenue code, or is a member of
the armed forces of the United States on active duty, is a volunteer in
the peace corps, or is a full-time volunteer under the domestic volun-
teer service act of 1973, and
(iii) who either: (I) has not attained the age of twenty-one, except
that where his or her twenty-first birthday falls within a taxable year
with respect to which a modification based on contributions to a quali-
fied higher education fund with respect to which he or she is a benefi-
ciary is allowed to a taxpayer, for purposes of this subclause such
A. 10030 910
beneficiary shall be deemed not to have attained the age of twenty-one
until the day next succeeding the last day of such taxable year, or (II)
is a student, as defined in paragraph four of subsection (e) of section
one hundred fifty-one of the internal revenue code or, for a period of
up to four years, is a member of the armed forces of the United States
on active duty, is a volunteer in the peace corps, or is a full-time
volunteer under the domestic volunteer service act of 1973. Where the
determination of an individual's status as a student is required for a
purpose other than determining the permissibility of a modification
under this subdivision, an individual shall be deemed not to be a
student as of the last day of any calendar year during which he or she
fails to satisfy the requirements of subparagraphs (A) and (B) of para-
graph four of subsection (e) of section one hundred fifty-one of the
internal revenue code during each of five calendar months during such
calendar year.
(D) A person who meets the requirements of subparagraph (C) of this
paragraph shall cease to be an eligible beneficiary:
(i) if payments by the fund to him or her, or on his or her behalf,
for the purpose specified in clause (i) of subparagraph (A) of this
paragraph do not commence within five years after the date on which such
person was graduated or separated from secondary school, excluding any
period of up to four years during which an otherwise eligible benefici-
ary was a member of the armed forces of the United States on active
duty, a volunteer in the peace corps, or in service as a full-time
volunteer under the domestic volunteer service act of 1973, or
(ii) after the expiration of ten years from the date of such gradu-
ation or separation, excluding any period of up to four years during
which an otherwise eligible beneficiary was a member of the armed forces
of the United States on active duty, a volunteer in the peace corps, or
in service as a full-time volunteer under the domestic volunteer service
act of 1973, or
(iii) if within six months after either his or her eighteenth birthday
or the date on which such fund is established, whichever is later, he or
she does not file with the tax commission, on a form and in the manner
prescribed by regulation, a notice of consent relating to the tax treat-
ment of payments from a qualified higher education fund imposed under
paragraph fourteen of subdivision (b) of this section.
(E) Where a fund is continued subsequent to its creator's death, an
individual shall not cease to be an eligible beneficiary by reason of
failure to fulfill the requirement set forth in clause (ii) of subpara-
graph (C) of this paragraph.
(F) For purposes of this subdivision, the term "institution of higher
education" means an educational organization described in clause (ii) of
subparagraph (A) of paragraph one of subsection (b) of section one
hundred seventy of the internal revenue code,
(i) which provides an educational program for which it awards an asso-
ciate, baccalaureate or higher degree or provides a program which is
acceptable for full credit toward such a degree,
(ii) contributions to or for the use of which constitute charitable
contributions within the meaning of section one hundred seventy (c) of
the internal revenue code,
(iii) which is legally authorized to provide and does provide a
program of postsecondary education, and
(iv) which is accredited by a nationally recognized accrediting agency
or association listed by the United States commissioner of education.
(4) A qualified higher education fund shall terminate:
A. 10030 911
(A) if a contribution is made to the fund in excess of the amount
allowable as a subtraction from federal adjusted gross income under
paragraph one of this subdivision,
(B) if a distribution is made by the fund other than to, or on behalf
of, an eligible beneficiary for the purpose specified in clause (i) of
subparagraph (A) of paragraph three of this subdivision,
(C) if the plan ceases to have an eligible beneficiary, or
(D) in the absence of a testamentary disposition or inter vivos trust
provision to the contrary, upon the death of the creator of the fund, or
(E) if the fund is otherwise terminated under the tax law.
(5) The tax commission may by regulation require the filing of a
report annually by the creator of a qualified higher education fund or
other person designated by such regulation, such report to set forth the
amounts contributed to a qualified higher education fund, as well as the
amount, purpose and beneficiary of each disbursement made therefrom.
The tax commission may also by regulation require written notification
annually to each beneficiary of such disbursements made on his or her
behalf.
(6) The provisions of subparagraph (B) of paragraph four of this
subdivision shall not apply in the case of a rollover. A rollover occurs
where the creator of a qualified higher education fund withdraws all of
the assets of such fund and not later than sixty days subsequent to such
withdrawal establishes a new qualified higher education fund and depos-
its therein an amount equal to the value of the assets so withdrawn.
Such deposit shall not constitute a contribution within the meaning of
this subdivision. This paragraph shall not apply if at any time during
the one year period ending on the date of such withdrawal from the qual-
ified higher education fund the creator had made a similar withdrawal
from another qualified higher education fund, both such funds having at
least one beneficiary in common, where such prior withdrawal was
followed by the establishment of a new qualified higher education fund
such that a rollover was effected pursuant to the provisions of this
paragraph.
(l) Qualified higher education fund. (1) Upon termination of a
qualified higher education fund under subparagraph (A), (B) or (E) of
paragraph four of subdivision (k) of this section, a taxpayer to whom
the assets of the fund are required to be distributed pursuant to clause
(iii) of subparagraph (A) of paragraph three of subdivision (k) of this
section shall add to his or her federal adjusted gross income for the
taxable year during which the terminating event occurs an amount equal
to one hundred ten per centum of an amount which bears the same ratio to
the value of the assets of such fund immediately prior to termination as
the total contributions made to such fund by a city resident individual,
estate or trust bears to the total contributions made to such fund. For
purposes of this subdivision the value of the assets of the fund imme-
diately prior to termination shall include the value of any distrib-
utions made to or on behalf of an eligible beneficiary who subsequently
ceased to be an eligible beneficiary pursuant to clause (iii) of subpar-
agraph (D) of paragraph three of subdivision (k) of this section.
(2) Payments made to or on behalf of an eligible beneficiary from a
qualified higher education fund for the purpose specified in clause (i)
of subparagraph (A) of paragraph three of subdivision (k) of this
section shall be added to the federal adjusted gross income of the indi-
vidual taxpayer to whom or on whose behalf the payment is made, in
accordance with the following. For the first taxable year of such
taxpayer in which no payment described in this paragraph is made with
A. 10030 912
respect to him or her and during which such taxpayer is not a student,
as defined in paragraph four of subsection (e) of section one hundred
fifty-one of the internal revenue code, treating the terms "individual"
and "taxpayer" therein as referring to such taxpayer, or, for a period
of up to four years, a member of the armed forces of the United States
on active duty, a volunteer in the peace corps, or a full-time volunteer
under the domestic volunteer service act of 1973, which taxable year
commences after the last day of the first calendar year in which such a
payment is made, one-fifth of the aggregate of all such payments there-
tofore made, such aggregate amount pro-rated, pursuant to regulations
promulgated by the tax commission, according to the portion of the total
contributions made to the fund prior to the first day of such taxable
year which constitute amounts contributed by a city resident individual,
estate or trust, shall be added to the federal adjusted gross income of
such taxpayer for such taxable year and for each of the four succeeding
taxable years in which no such payment is made and in which such taxpay-
er is not a student, as defined above, or, for a period of up to four
years, a member of the armed forces of the United States on active duty,
a volunteer in the peace corps, or a full-time volunteer under the
domestic volunteer service act of 1973. If in a taxable year subsequent
to a taxable year in which such addition to federal adjusted gross
income is required, a payment described in this paragraph is made, one-
fifth of the amount of such payment, pro-rated, pursuant to regulations
promulgated by the tax commission, according to the portion of the total
contributions made to the fund prior to the first day of such taxable
year which constitute amounts contributed by a city resident individual,
estate or trust, shall be added to the federal adjusted gross income of
such taxpayer for each of the five immediately succeeding taxable years
in which no such payment is made and in which such taxpayer is not a
student, as defined above, or, for a period of up to four years, a
member of the armed forces of the United States on active duty, a volun-
teer in the peace corps, or a full-time volunteer under the domestic
volunteer service act of 1973.
(n) Where gain or loss is recognized for federal income tax purposes
upon the disposition of stock or indebtedness of a corporation electing
under subchapter s of chapter one of the internal revenue code:
(1) There shall be added to federal adjusted gross income the amount
of increase in basis with respect to such stock or indebtedness pursuant
to subsection (a) of section thirteen hundred seventy-six of the inter-
nal revenue code as such section was in effect for taxable years begin-
ning before January first, nineteen hundred eighty-three and subpara-
graphs (A) and (B) of paragraph one of subsection (a) of section
thirteen hundred sixty-seven of such code, for each taxable year of the
corporation beginning, in the case of a corporation taxable under arti-
cle nine-A of the tax law, after December thirty-first, nineteen hundred
eighty, for which the election provided for in subsection (a) of section
six hundred sixty of the tax law was not in effect, and
(2) There shall be subtracted from federal adjusted gross income:
(A) the amount of reduction in basis with respect to such stock or
indebtedness pursuant to subsection (b) of section thirteen hundred
seventy-six of the internal revenue code as such section was in effect
for taxable years beginning before January first, nineteen hundred
eighty-three and subparagraphs (B) and (C) of paragraph two of
subsection (a) of section thirteen hundred sixty-seven of such code, for
each taxable year of the corporation beginning, in the case of a corpo-
ration taxable under article nine-A of the tax law, after December thir-
A. 10030 913
ty-first, nineteen hundred eighty, for which the election provided for
in subsection (a) of section six hundred sixty of the tax law was not in
effect and
(B) the amount of any modifications to federal gross income with
respect to such stock pursuant to paragraph twenty-one of subdivision
(b) of this section.
(o) Modifications for new business investment gains and certain new
business investments.
1. For purposes of this subdivision, the following definitions shall
apply:
(A) "New business investment gain" means gain from the sale of a new
business investment issued to the taxpayer before January first, nine-
teen hundred eighty-eight, if:
(i) such new business investment is, in the hands of the person sell-
ing the same, whether or not the taxpayer, a capital asset as defined in
section twelve hundred twenty-one of the internal revenue code of nine-
teen hundred fifty-four, as amended, and
(ii) such new business investment was held by such person for the
period specified in paragraph two of this subdivision.
(B) "New business" means a corporation or partnership organized or
formed under the laws of any state which:
(i) adopts a plan on or after July first, nineteen hundred eighty-one
and before January first, nineteen hundred eighty-eight, to conduct a
new business within the meaning and intent of this section and to issue
new business investments, as defined in this subdivision, and
(ii) is, at the date of adoption of such plan, subject to taxation,
whether or not any amount is owing, under section one hundred eighty-
three or one hundred eighty-four of article nine of the tax law, or
under article nine-A of the tax law or article twenty-three of the tax
law, or would have been subject to tax under article twenty-three of
such law, as such article was in effect on January first, nineteen
hundred eighty, if such article were still in effect, and the first
taxable period for which such new business became subject to such taxa-
tion commenced on or after July first, nineteen hundred eighty-one and
before January first, nineteen hundred eighty-eight, and such first
taxable period includes the date of adoption of such plan; if not so
subject to taxation, the new business must be subject to taxation under
such sections or articles for the first time within one year from the
date of adoption of such plan, and
(iii) is conducted, or will be conducted, as evidenced by such plan,
whereby at least ninety percent of the assets, valued at original cost,
are located and employed in this state and eighty percent of the employ-
ees, in addition, in the case of a partnership, excluding partners, are
principally employed in this state during each taxable period, or part
thereof, as required by clause (iv) of this subparagraph, and
(iv) within ninety days after adoption of such plan, or, if a return
is required, as part of such return, under such article nine, article
nine-A or article twenty-three of the tax law, whichever is sooner,
shall file a new business certificate with the tax commission attesting
to whether it meets, if subject to taxation under such articles, or
intends to meet, if not so subject, all of the conditions stated in
clauses (i), (ii) and (iii) of this subparagraph within the time set
forth therein. Thereafter, during the first four taxable years of such
new business, along with, and as part of, any return required under such
articles, such new business shall make and file a new business certif-
icate for the period covered by such return attesting to whether it has
A. 10030 914
met the conditions specified in this subparagraph during the taxable
period covered by such return. If no return is required under such arti-
cles, such certificate shall be filed annually on or before the
fifteenth day of March which shall cover the twelve consecutive calendar
month period ending on the last day of December immediately preceding
such March fifteenth. If such new business fails to meet such conditions
specified in this subparagraph, it shall, in addition, give notice of
this fact, within the time prescribed by the tax commission, to the
holders of its "new business investments." The tax commission shall
prescribe the form and content of such new business certification and
may require a new business to file such certificate for periods, even if
no return is filed or required, but for this section, covering up to
eight years from the date of adoption of such plan, as in its
discretion, it deems the same necessary for the enforcement of this
section, and
(v) Special rules:
(1) For any taxable period, in order to constitute a new business, a
business enterprise must have derived more than sixty percent of its
aggregate gross receipts from sources other than royalties, rents, divi-
dends, interest, annuities and sales or exchanges of stock or securi-
ties.
(2) A new business does not include: (i) any new business of which
twenty-five percent or more of the number of shares of stock that enti-
tle the holders thereof to vote for the election of directors or trus-
tees is owned, directly or indirectly, by a taxpayer subject to tax
under section one hundred eighty-three, one hundred eighty-four, former
section one hundred eighty-five or former section one hundred eighty-six
of article nine of the tax law, or under article nine-A, or thirty-three
of the tax law or (ii) any new business substantially similar in opera-
tion and in ownership, directly or indirectly, to a business entity, or
entities, taxable, or previously taxable, under such section, such arti-
cle, article twenty-three of the tax law or which would have been
subject to tax under such article twenty-three, as such article was in
effect on January first, nineteen hundred eighty, or the income, or
losses, of which is, or was, includible under article twenty-two of such
tax law whereby the intent and purpose of this section would be evaded.
(C) "New business investment" means and includes the following invest-
ments issued before January first, nineteen hundred eighty-eight by a
new business pursuant to a plan described in clause (i) of subparagraph
(B) of this paragraph for money or other property, other than stock or
securities, on or before the expiration of the third taxable year of
such new business, excluding any short period immediately preceding such
taxable year because the new business was not in existence for an entire
taxable year, or forty-two months from the adoption of such plan, which-
ever is sooner: (i) original issuance capital stock as part of a new
issue, (ii) other original issuance securities of a new issue of a like
nature as stocks which are designed as a means of investment and issued
for the purpose of financing corporate enterprises and providing for a
distribution of rights in such enterprises, (iii) debt obligations such
as bonds and debentures for a term of at least one year, whether
secured or unsecured, and (iv) certificates and other instruments
representing proprietary interests, whether limited or otherwise, in and
assumption of general liabilities, whether limited or otherwise, of a
partnership enterprise.
A. 10030 915
2. A taxpayer may subtract from his federal adjusted gross income a
portion of an amount constituting a new business investment gain, as
follows:
If new business The modification is equal to the
investment held for: following proportion of the gain
includible in federal
adjusted gross income:
At least four years, but
less than five years twenty-five percent
At least five years, but
less than six years fifty percent
At least six years one hundred percent
3. Where, within six months of the realization of a new business
investment gain allowable as the basis of a modification under paragraph
two of this subdivision, such modification is equal to less than one
hundred percent of the portion of the gain includible in federal
adjusted gross income and the taxpayer purchases a new business invest-
ment which is then held for a period of at least six months, the taxpay-
er may subtract from his or her federal adjusted gross income ten
percent, but not an amount that will reduce the portion of such gain
included in his or her New York income below zero, of the amount of such
gain where the purchase price of the new business investment is equal to
or greater than the proceeds of the sale giving rise to such gain. Where
the purchase price of the new business investment is less than an amount
equal to the proceeds of such sale, the modification allowable under
this paragraph shall be equal to ten percent of an amount equal to the
product of: (A) the amount of the gain and (B) a fraction the numerator
of which is the purchase price of the new investment and the denominator
of which is an amount equal to the proceeds of such sale. The modifica-
tion allowable under this paragraph may be utilized, at the option of
the taxpayer, with respect to the taxable year in which the new business
investment gain is realized or the year containing the last day of the
six-month retention period described in this paragraph.
4. The tax commission may prescribe such rules and regulations as may
be necessary to carry out the purposes of this subdivision.
(p) New business investment deferral. For taxable years beginning
before January first, nineteen hundred eighty-eight, at the option of
the taxpayer, there may be subtracted from federal adjusted gross income
a reinvested amount of long-term capital gain realized in a taxable year
from the sale of a capital asset, as such term is defined in section
twelve hundred twenty-one of the internal revenue code, which is not a
new business investment. A reinvested amount of long-term capital gain
shall mean an amount which bears the same ratio to the long-term capital
gain realized from the sale of a capital asset which was includible in
New York adjusted gross income as that portion of the sale proceeds
which is reinvested, within one year from date of sale, in a New York
new business bears to the total sale proceeds. For the purposes of this
subdivision, a New York new business is a business enterprise which: (1)
has been a taxpayer under article nine-A, twenty-two, or thirty-three of
the tax law for no more than three taxable years, including short taxa-
ble years, (2) over fifty percent of the number of shares of stock that
entitle the holders thereof to vote for the election of directors or
trustees is not owned, directly or indirectly, by a taxpayer subject to
tax under section one hundred eighty-three, one hundred eighty-four or
one hundred eighty-five of article nine of the tax law, or under article
nine-A, thirty-two or thirty-three of the tax law, (3) is not substan-
A. 10030 916
tially similar in operation or ownership, directly or indirectly, to a
business entity, or entities taxable, or previously taxable, under such
sections, such articles, article twenty-three of the tax law or which
would have been subject to tax under article twenty-three, as such arti-
cle was in effect on January first, nineteen hundred eighty, or the
income, or losses, of which is, or was, includible under article twen-
ty-two of the tax law whereby the intent and purpose of this subdivision
would be evaded, (4) locates and employs at least ninety percent of its
assets in the state, (5) employs principally in the state eighty percent
of its employees, and (6) derives less than forty percent of its gross
income from dividends, interest, royalties, other than mineral, oil, or
gas royalties or copyright royalties, annuities and (7) reports at least
twenty-five hundred dollars in gross income in any taxable year. The
reinvested amount must qualify as a capital asset as defined pursuant to
section twelve hundred twenty-one of the internal revenue code and must
be retained by the taxpayer for at least twelve months. The modification
allowable under this subdivision shall be utilized with respect to the
taxable year in which the twelve month retention period ends.
(q) An amount deferred under subdivision (p) of this section shall be
added to federal adjusted gross income when the reinvestment in the New
York new business which qualified a taxpayer for such deferral is sold.
(r) In the case of a sale or other disposition of property acquired
from a decedent and valued by the executor of the estate of such dece-
dent for the purposes of the tax under article twenty-six of the tax law
pursuant to paragraph two of subsection (b) of section nine hundred
fifty-four of the tax law, where such estate was insufficient to require
the filing of a federal estate tax return, the amount necessary to prop-
erly reflect the gain or loss from such sale or other disposition which
would have been realized under this chapter, had, in the case of clause
(i) of this subdivision, a federal estate tax return been filed similar-
ly valuing such property pursuant to section two thousand thirty-two of
the internal revenue code, or in the case of clause (ii) of this subdi-
vision, pursuant to section two thousand thirty-two-A of such code.
(s) New York S termination year. (1) General. In the case of a New
York S termination year, the amount of any item of S corporation income,
loss and deduction included in the shareholder's federal adjusted gross
income and any reductions for taxes, as described in paragraphs two and
three of subsection (f) of section thirteen hundred sixty-six of the
internal revenue code, shall be adjusted in accordance with the treat-
ment provided in paragraph two or three of this subdivision.
(2) Pro rata allocation. Unless paragraph three of this subdivision
applies, an equal portion of each S corporation item shall be assigned
to each day of the S corporation's taxable year for federal income tax
purposes. The portion of each such item thereby assigned to the S short
year shall be treated as an item of a New York S corporation, and the
portion of each such item thereby assigned to the C short year shall be
treated as an item of an S corporation which is a New York C corpo-
ration.
(3) Normal tax accounting. The portion of each S corporation item
assigned to the S short year and the C short year shall be determined
using normal tax accounting rules if:
(A) there is a sale or exchange of fifty percent or more of the stock
in such corporation during the New York S termination year or
(B) the corporation so elects, as provided in subparagraph (B) of
paragraph two of subsection (s) of section six hundred twelve of the tax
law.
A. 10030 917
(t) Related members expense add back. (1) Definitions. (A) Related
member. "Related member" means a related person as defined in subpara-
graph (c) of paragraph three of subsection (b) of section four hundred
sixty-five of the internal revenue code, except that "fifty percent"
shall be substituted for "ten percent".
(B) Effective rate of tax. "Effective rate of tax" means, as to any
city, the maximum statutory rate of tax imposed by the city on or meas-
ured by a related member's net income multiplied by the apportionment
percentage, if any, applicable to the related member under the laws of
said jurisdiction. For purposes of this definition, the effective rate
of tax as to any city is zero where the related member's net income tax
liability in said city is reported on a combined or consolidated return
including both the taxpayer and the related member where the reported
transactions between the taxpayer and the related member are eliminated
or offset. Also, for purposes of this definition, when computing the
effective rate of tax for a city in which a related member's net income
is eliminated or offset by a credit or similar adjustment that is
dependent upon the related member either maintaining or managing intan-
gible property or collecting interest income in that city, the maximum
statutory rate of tax imposed by said city shall be decreased to reflect
the statutory rate of tax that applies to the related member as effec-
tively reduced by such credit or similar adjustment.
(C) Royalty payments. Royalty payments are payments directly connected
to the acquisition, use, maintenance or management, ownership, sale,
exchange, or any other disposition of licenses, trademarks, copyrights,
trade names, trade dress, service marks, mask works, trade secrets,
patents and any other similar types of intangible assets as determined
by the state commissioner of taxation and finance, and include amounts
allowable as interest deductions under section one hundred sixty-three
of the internal revenue code to the extent such amounts are directly or
indirectly for, related to or in connection with the acquisition, use,
maintenance or management, ownership, sale, exchange or disposition of
such intangible assets.
(D) Valid business purpose. A valid business purpose is one or more
business purposes, other than the avoidance or reduction of taxation,
which alone or in combination constitute the primary motivation for some
business activity or transaction, which activity or transaction changes
in a meaningful way, apart from tax effects, the economic position of
the taxpayer. The economic position of the taxpayer includes an increase
in the market share of the taxpayer, or the entry by the taxpayer into
new business markets.
(2) Royalty expense add backs. (A) For the purpose of computing city
adjusted gross income, a taxpayer must add back royalty payments direct-
ly or indirectly paid, accrued, or incurred in connection with one or
more direct or indirect transactions with one or more related members
during the taxable year to the extent deductible in calculating federal
taxable income.
(B) Exceptions. (i) The adjustment required in this subdivision shall
not apply to the portion of the royalty payment that the taxpayer estab-
lishes, by clear and convincing evidence of the type and in the form
specified by the commissioner of finance, meets all of the following
requirements: (I) the related member was subject to tax in this city or
another city within the United States or a foreign nation or some combi-
nation thereof on a tax base that included the royalty payment paid,
accrued or incurred by the taxpayer; (II) the related member during the
same taxable year directly or indirectly paid, accrued or incurred such
A. 10030 918
portion to a person that is not a related member; and (III) the trans-
action giving rise to the royalty payment between the taxpayer and the
related member was undertaken for a valid business purpose.
(ii) The adjustment required in this subdivision shall not apply if
the taxpayer establishes, by clear and convincing evidence of the type
and in the form specified by the commissioner of finance, that: (I) the
related member was subject to tax on or measured by its net income in
this city or another city within the United States, or some combination
thereof; (II) the tax base for said tax included the royalty payment
paid, accrued or incurred by the taxpayer; and (III) the aggregate
effective rate of tax applied to the related member in those jurisdic-
tions is no less than eighty percent of the statutory rate of tax that
applied to the taxpayer under section 11-1701 of this chapter for the
taxable year.
(iii) The adjustment required in this subdivision shall not apply if
the taxpayer establishes, by clear and convincing evidence of the type
and in the form specified by the commissioner of finance, that: (I) the
royalty payment was paid, accrued or incurred to a related member organ-
ized under the laws of a country other than the United States; (II) the
related member's income from the transaction was subject to a comprehen-
sive income tax treaty between such country and the United States; (III)
the related member was subject to tax in a foreign nation on a tax base
that included the royalty payment paid, accrued or incurred by the
taxpayer; (IV) the related member's income from the transaction was
taxed in such country at an effective rate of tax at least equal to that
imposed by this city; and (V) the royalty payment was paid, accrued or
incurred pursuant to a transaction that was undertaken for a valid busi-
ness purpose and using terms that reflect an arm's length relationship.
(iv) The adjustment required in this subdivision shall not apply if
the taxpayer and the commissioner of finance agree in writing to the
application or use of alternative adjustments or computations. The
commissioner of finance may, in his or her discretion, agree to the
application or use of alternative adjustments or computations when he or
she concludes that in the absence of such agreement the income of the
taxpayer would not be properly reflected.
(u) Alimony modifications. (1) In the case of applicable alimony or
separate maintenance payments, the following modifications shall apply:
(A) There shall be subtracted from federal adjusted gross income any
applicable alimony or separate maintenance payments made by the taxpayer
during the taxable year.
(B) There shall be added to federal adjusted gross income any applica-
ble alimony or separate maintenance payments received by the taxpayer
during the taxable year.
(2) (A) The term "alimony or separate maintenance payments" means
payments as defined under section seventy-one of the internal revenue
code in effect immediately prior to the enactment of Public Law 115-97.
(B) The term "applicable alimony or separate maintenance payments"
means payments made under an alimony or separation instrument, as
defined in section seventy-one of the internal revenue code in effect
immediately prior to the enactment of Public Law 115-97, that was
executed after December thirty-first, two thousand eighteen, and any
divorce or separation instrument executed on or before such date and
modified after such date if the modification expressly provides that the
amendments made by this section apply to such modification.
A. 10030 919
(v) Qualified moving expense reimbursement and moving expenses. (1) In
the case of applicable qualified moving expense reimbursement and moving
expenses, the following modifications shall apply:
(A) There shall be subtracted from federal adjusted gross income any
applicable qualified moving expense reimbursement received by the
taxpayer during the taxable year.
(B) There shall be subtracted from federal adjusted gross income any
applicable moving expenses paid by the taxpayer during the taxable year.
(2) Applicable qualified moving expense reimbursement and moving
expenses are those deductions as allowed by paragraph (g) of section one
hundred thirty-two and section two hundred seventeen, respectfully, of
the internal revenue code immediately prior to the enactment of Public
Law 115-97.
§ 11-1713 City deduction of a resident individual. The city
deduction of a city resident individual shall be his or her city stand-
ard deduction unless such resident individual elects to deduct his or
her city itemized deduction under the conditions set forth in section
11-1715 of this chapter.
§ 11-1714 City standard deduction of a city resident individual. (a)
Unmarried individual. For taxable years beginning after nineteen hundred
ninety-five, the city standard deduction of a city resident individual
who is not married nor the head of a household nor a surviving spouse
nor an individual who is claimed as a dependent by another New York
state taxpayer shall be seven thousand five hundred dollars; for taxable
years beginning in nineteen hundred ninety-five, such standard deduction
shall be seven thousand four hundred dollars; for taxable years begin-
ning in nineteen hundred ninety-four, such standard deduction shall be
six thousand six hundred dollars; and for taxable years beginning after
nineteen hundred eighty-nine and before nineteen hundred ninety-four,
such standard deduction shall be six thousand dollars.
(b) Husband and wife filing jointly and surviving spouse. For taxable
years beginning after nineteen hundred ninety-five, the city standard
deduction of a husband and wife whose city taxable income is determined
jointly or a surviving spouse shall be thirteen thousand dollars; for
taxable years beginning in nineteen hundred ninety-five, such standard
deduction shall be twelve thousand three hundred fifty dollars; for
taxable years beginning in nineteen hundred ninety-four, such standard
deduction shall be ten thousand eight hundred dollars; and for taxable
years beginning after nineteen hundred eighty-nine and before nineteen
hundred ninety-four, such standard deduction shall be nine thousand five
hundred dollars.
(c) Head of household. For taxable years beginning after nineteen
hundred ninety-five, the city standard deduction of an individual who is
a head of household shall be ten thousand five hundred dollars; for
taxable years beginning in nineteen hundred ninety-five, such standard
deduction shall be ten thousand dollars; for taxable years beginning in
nineteen hundred ninety-four, such standard deduction shall be eight
thousand one hundred fifty dollars; and for taxable years beginning
after nineteen hundred eighty-nine and before nineteen hundred ninety-
four, such standard deduction shall be seven thousand dollars.
(d) Married individuals filing separately. For taxable years beginning
after nineteen hundred ninety-five, the city standard deduction of a
married individual filing a separate return shall be six thousand five
hundred dollars; for taxable years beginning in nineteen hundred nine-
ty-five, such standard deduction shall be six thousand one hundred
seventy-five dollars; for taxable years beginning in nineteen hundred
A. 10030 920
ninety-four, such standard deduction shall be five thousand four hundred
dollars; and for taxable years beginning after nineteen hundred eighty-
nine and before nineteen hundred ninety-four, such standard deduction
shall be four thousand seven hundred fifty dollars.
(e) Standard deduction of a dependent individual. For taxable years
beginning after nineteen hundred ninety-five, the city standard
deduction of a city resident individual whose federal exemption amount
is zero shall be three thousand dollars; for taxable years beginning in
nineteen hundred ninety-five, such standard deduction shall be two thou-
sand nine hundred dollars; and for taxable years beginning after nine-
teen hundred eighty-nine and before nineteen hundred ninety-five, such
standard deduction shall be two thousand eight hundred dollars.
(f) For taxable years beginning on or after January first, two thou-
sand thirteen, the amounts of standard deductions set forth in this
section shall be adjusted in the same manner as the amounts of standard
deductions set forth in section six hundred fourteen of the tax law.
§ 11-1715 City itemized deduction of a city resident individual.
(a) General. If federal taxable income of a city resident individual
is determined by itemizing deductions or claiming the federal standard
deduction from his or her federal adjusted gross income, such resident
individual may elect to deduct his or her city itemized deduction or
claim his or her city standard deduction.
The city itemized deduction of a city resident individual means the
total amount of his or her deductions from federal adjusted gross income
allowed, other than federal deductions for personal exemptions, as
provided in the laws of the United States for the taxable year, as such
deductions existed immediately prior to the enactment of Public Law
115-97 with the modifications specified in this section, except as
provided for under subdivision (f) of this section.
(b) Husband and wife.
(1) A husband and wife, both of whom are required to file returns
under this chapter, shall be allowed city itemized deductions only if
both elect to take city itemized deductions.
(2) The total of the city itemized deductions of a husband and wife
whose federal taxable income is determined on a joint return, but whose
city taxable incomes are required to be determined separately, shall be
divided between them as if their federal taxable incomes had been deter-
mined separately.
(c) Modifications reducing federal itemized deductions. The total
amount of deductions from federal adjusted gross income shall be reduced
by the amount of such federal deductions for:
(1) state and local general sales taxes as defined in subsection (b)
of section one hundred sixty-four of the internal revenue code, to the
extent included in federal itemized deductions or income taxes imposed
by this city or any other taxing jurisdiction, except city earnings
taxes on nonresidents that are imposed upon and paid by taxpayers for
taxable years beginning after December thirty-first, nineteen hundred
seventy and before January first, two thousand, to the extent that the
amount of such tax exceeds the tax computed as if the rates were one-
fourth of one percent of wages subject to tax and three-eighths of one
percent of net earnings from self-employment subject to tax;
(2) interest on indebtedness incurred or continued to purchase or
carry obligations or securities the interest on which is exempt from tax
under this chapter; and
(3) ordinary and necessary expenses paid or incurred during the taxa-
ble year for: (i) the production or collection of income which is exempt
A. 10030 921
from tax under this chapter, or (ii) the management, conservation or
maintenance of property held for the production of such income, and the
amortizable bond premium for the taxable year on any bond the interest
on which is exempt from tax under this chapter, to the extent that such
expenses and premiums are deductible in determining federal taxable
income.
(4) premiums paid for long-term care insurance to the extent that such
premiums are deductible in determining federal taxable income.
(6) in the case of a shareholder of an S corporation:
(A) where the election provided for in subsection (a) of section six
hundred sixty of the tax law has not been made, S corporation items of
deduction included in federal itemized deductions, and
(B) in the case of a New York S termination year, the portion of such
items assigned to the period beginning on the day the election ceases to
be effective, as determined under subdivision (s) of section 11-1712 of
this subchapter.
(d) Modifications increasing federal itemized deductions. The total
amount of deductions from federal adjusted gross income shall be
increased by:
(1) (Reserved.)
(2) interest on indebtedness incurred or continued to purchase or
carry obligations or securities the interest on which is subject to tax
under this chapter but exempt from federal income tax, to the extent
that such interest on indebtedness is not deductible for federal income
tax purposes and is not subtracted from federal adjusted gross income
pursuant to paragraph nine of subdivision (c) of section 11-1712 of this
subchapter; and
(3) ordinary and necessary expenses paid or incurred during the taxa-
ble year for: (i) the production or collection of income which is
subject to tax under this chapter but exempt from federal income tax, or
(ii) the management, conservation or maintenance of property held for
the production of such income, and the amortizable bond premium for the
taxable year on any bond the interest on which is subject to tax under
this chapter but exempt from federal income tax, to the extent that such
expenses and premiums are not deductible in determining federal adjusted
gross income and are not subtracted from federal adjusted gross income
pursuant to paragraph ten of subdivision (c) of section 11-1712 of this
subchapter.
(4) allowable college tuition expenses, as defined in paragraph two of
subsection (t) of section six hundred six of the tax law, multiplied by
the applicable percentage. Such applicable percentage shall be twenty-
five percent for taxable years beginning in two thousand one, fifty
percent for taxable years beginning in two thousand two, seventy-five
percent for taxable years beginning in two thousand three and one
hundred percent for taxable years beginning after two thousand three.
Provided, however, no deduction shall be allowed under this paragraph to
a taxpayer who claims the credit provided under subsection (t) of
section six hundred six of the tax law.
(e) Modification of partners and shareholders of S corporations. (1)
Partners and shareholders of S corporations which are not New York C
corporations. The amounts of modifications under subdivision (c) or
under paragraph two or three of subdivision (d) required to be made by a
partner or by a shareholder of an S corporation, other than an S corpo-
ration which is a New York C corporation, with respect to items of
deduction of a partnership or S corporation shall be determined under
section 11-1717 of this subchapter.
A. 10030 922
(2) Shareholders of S corporations which are New York C corporations.
In the case of a shareholder of an S corporation which is a New York C
corporation, the modifications under this section which relate to the
corporation's items of deduction shall not apply, except for the modifi-
cation provided under paragraph six of subdivision (c) of this section.
(3) New York S termination year. In the case of a New York S termi-
nation year, the amounts of the modifications required under this
section which relate to the S corporation's items of deduction shall be
adjusted in the same manner that the S corporation's items are adjusted
under subdivision (s) of section 11-1712 of this subchapter.
(f) Except as otherwise provided under subdivision (g) of this
section, the city itemized deduction otherwise allowable under this
section shall be reduced by the sum of the amounts determined under
paragraphs one and two of this subdivision.
(1) An amount equal to the city itemized deduction otherwise allowable
under subdivision (a) of this section, multiplied by a percentage, such
percentage to be determined by multiplying, for taxable years beginning
in nineteen hundred eighty-eight, ten percent, and for taxable years
beginning after nineteen hundred eighty-eight, twenty-five percent, by a
fraction,
(A) in the case of an unmarried individual or married individual
filing a separate return, the numerator of which is the lesser of fifty
thousand dollars or the excess of such individual's city adjusted gross
income over one hundred thousand dollars and the denominator of which is
fifty thousand dollars;
(B) in the case of a married individual filing a joint return or a
surviving spouse, the numerator of which is the lesser of fifty thousand
dollars or the excess of such individual's city adjusted gross income
over two hundred thousand dollars and the denominator of which is fifty
thousand dollars;
(C) in the case of a head of household, the numerator of which is the
lesser of fifty thousand dollars or the excess of such individual's city
adjusted gross income over one hundred fifty thousand dollars and the
denominator of which is fifty thousand dollars.
(2) An amount equal to the city itemized deduction of an individual
otherwise allowable under subdivision (a) of this section, multiplied by
a percentage, such percentage to be determined by multiplying, for taxa-
ble years beginning in nineteen hundred eighty-eight, ten percent, and
for taxable years beginning after nineteen hundred eighty-eight, twen-
ty-five percent, by a fraction, the numerator of which is the lesser of
fifty thousand dollars or the excess of such individual's city adjusted
gross income over four hundred seventy-five thousand dollars and the
denominator of which is fifty thousand dollars.
(g) Notwithstanding subdivision (a) of this section, the city itemized
deduction for charitable contributions shall be the amount allowed under
section one hundred seventy of the internal revenue code, as limited by
this subdivision. (1) With respect to an individual whose New York
adjusted gross income is over one million dollars but no more than ten
million dollars, the New York itemized deduction shall be an amount
equal to fifty percent of any charitable contribution deduction allowed
under section one hundred seventy of the internal revenue code for taxa-
ble years beginning after two thousand nine and before two thousand
twenty-five. With respect to an individual whose New York adjusted gross
income is over one million dollars, the New York itemized deduction
shall be an amount equal to fifty percent of any charitable contribution
deduction allowed under section one hundred seventy of the internal
A. 10030 923
revenue code for taxable years beginning in two thousand nine or after
two thousand twenty-four.
(2) With respect to an individual whose New York adjusted gross income
is over ten million dollars, the New York itemized deduction shall be an
amount equal to twenty-five percent of any charitable contribution
deduction allowed under section one hundred seventy of the internal
revenue code for taxable years beginning after two thousand nine and
ending before two thousand twenty-five.
§ 11-1716 City exemptions of a city resident individual. (a) Gener-
al. For taxable years beginning after nineteen hundred eighty-seven, a
city resident individual shall be allowed a city exemption of one thou-
sand dollars for each exemption for which such resident individual is
entitled to a deduction for the taxable year under subsection (c) of
section one hundred fifty-one of the internal revenue code; and for
taxable years beginning in nineteen hundred eighty-seven, a city resi-
dent individual other than a taxpayer whose federal exemption amount is
zero shall be allowed a city exemption of nine hundred dollars for each
exemption for which he or she is entitled to a deduction for the taxable
year for federal income tax purposes.
(b) Husband and wife. If the city income taxes of a husband and wife
are required to be separately determined but their federal income tax is
determined on a joint return, each of them shall be separately entitled
to the city exemptions under subdivision (a) of this section to which
each would be separately entitled for the taxable year if their federal
income taxes had been determined on separate returns.
§ 11-1717 Resident partners and shareholders of S corporations. (a)
Partner's and shareholder's modifications. In determining city adjusted
gross income and city taxable income of a city resident partner or a
city resident shareholder of an S corporation, other than an S corpo-
ration which is a New York C corporation, any modification described in
subdivision (b), (c) or (d) of section 11-1712 of this subchapter, or
subdivision (c) of section 11-1715 of this subchapter or paragraph two
or three of subdivision (d) of such section, which relates to an item of
partnership or S corporation income, gain, loss or deduction shall be
made in accordance with the partner's distributive share or the share-
holder's pro rata share, for federal income tax purposes, of the item to
which the modification relates. Where a partner's distributive share or
a shareholder's pro rata share of any such item is not required to be
taken into account separately for federal income tax purposes, the part-
ner's or shareholder's share of such item shall be determined in accord-
ance with his or her share, for federal income tax purposes, of partner-
ship or S corporation taxable income or loss generally. In the case of
a New York S termination year, his or her pro rata share of any such
item shall be determined under subdivision (s) of section 11-1712 of
this subchapter.
(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 subchapter 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.
(c) City tax avoidance or evasion. Where a partner's distributive
share of an item of partnership income, gain, loss or deduction is
determined for federal income tax purposes by special provision in the
A. 10030 924
partnership agreement with respect to such item, and where the principal
purpose of such provision is the avoidance or evasion of tax under this
chapter, the partner's distributive share of such item, and any modifi-
cation required with respect thereto, shall be determined as if the
partnership agreement made no special provision with respect to such
item.
§ 11-1717.1 Residents; special provisions. Notwithstanding any other
provisions of this chapter, the city adjusted gross income and the city
taxable income of a resident individual or partner of a partnership
doing an insurance business as a member of the New York insurance
exchange described in section six thousand two hundred one of the insur-
ance law, shall not include any item of income, gain, loss or deduction
of such business, which is the individual's distributive or pro rata
share for federal income tax purposes or which the individual is
required to take into account separately for federal income tax
purposes. Provided however, such individual's city adjusted gross
income shall include his or her distributive or pro rata share of the
allocated entire net income as determined by such business under
sections fifteen hundred three and fifteen hundred four of the tax law.
In the event such allocated entire net income is a loss, there shall not
be subtracted from federal adjusted gross income in computing city
adjusted gross income such individual's distributive share of such loss.
§ 11-1718 City taxable income of a city resident estate or trust.
The city taxable income of a city resident estate or trust means its
federal taxable income as defined in the laws of the United States for
the taxable year, with the following modifications:
(2) There shall be subtracted the modifications described in para-
graphs four and five of subdivision (c) of section 11-1712 of this
subchapter, with respect to gains from the sale or other disposition of
property, to the extent such gains are excluded from federal distribut-
able net income of the estate or trust.
(3) There shall be added or subtracted, as the case may be, the share
of the estate or trust in the city fiduciary adjustment determined under
section 11-1719 of this subchapter.
(4) There shall be added or subtracted, as the case may be, the
modifications described in paragraphs six, ten, seventeen, eighteen,
nineteen, twenty, twenty-one, twenty-two, twenty-three, twenty-four,
twenty-five, twenty-six, twenty-seven, twenty-nine, thirty-four and
thirty-five of subdivision (b) and in paragraphs eleven, thirteen,
fifteen, nineteen, twenty, twenty-one, twenty-two, twenty-three, twen-
ty-four, twenty-five, twenty-six and twenty-eight of subdivision (c) of
section 11-1712 of this subchapter.
(5) In the case of a trust, there shall be added the amount of any
includible gain, reduced by any deductions properly allocable thereto,
upon which tax is imposed for the taxable year pursuant to section six
hundred forty-four of the internal revenue code.
§ 11-1719 Share of a resident estate, trust or beneficiary in city
fiduciary adjustment. (a) General. An adjustment shall be made in
determining city taxable income of a city resident estate or trust under
section 11-1718 of this subchapter, or city adjusted gross income of a
city resident beneficiary of any estate or trust under subdivision (d)
of section 11-1712 of this subchapter, in the amount of the share of
each in the city fiduciary adjustment as determined in this section.
(b) Definition. The city fiduciary adjustment shall be the net
amount of the modifications described in section 11-1712 of this
subchapter, including subdivision (d) if the estate or trust is a bene-
A. 10030 925
ficiary of another estate or trust, in subdivision (c) and paragraphs
two and three of subdivision (d) of section 11-1715 of this subchapter,
and in subdivision (e) of this section, which relate to items of income,
gain, loss or deduction of an estate or trust. The net amount of such
modifications shall not include:
(1) Any modification described in paragraphs one and two of subdivi-
sion (b) and paragraphs one, two, four, five, six, and seven of subdivi-
sion (c) of section 11-1712 of this subchapter with respect to any
amount which, pursuant to the terms of the governing instrument, is paid
or permanently set aside for a charitable purpose during the taxable
year, and
(2) Any modification described in paragraph four or five of subdivi-
sion (c) of section 11-1712 of this subchapter, with respect to gains
from the sale or other disposition of property, to the extent such gains
are excluded from federal distributable net income of the estate or
trust.
(c) Shares of city fiduciary adjustment.
(1) The respective shares of an estate or trust and its benefici-
aries, including, solely for the purpose of this allocation, nonresident
beneficiaries, in the city fiduciary adjustment shall be in proportion
to their respective shares of federal distributable net income of the
estate or trust.
(2) If the estate or trust has no federal distributable net income
for the taxable year, the share of each beneficiary in the city fiduci-
ary adjustment shall be in proportion to his or her share of the estate
or trust income for such year, under local law or the governing instru-
ment, which is required to be distributed currently and any other
amounts of such income distributed in such year. Any balance of the
city fiduciary adjustment shall be allocated to the estate or trust.
(d) Alternate attribution of modifications. The tax commission may
by regulation establish such other method or methods of determining to
whom the items comprising the fiduciary adjustment shall be attributed,
as may be appropriate and equitable. Such method may be used by the
fiduciary in his or her discretion whenever the allocation of the fidu-
ciary adjustment pursuant to subdivision (c) of this section would
result in an inequity which is substantial both in amount and in
relation to the amount of the fiduciary adjustment.
(e) Additional modifications. (1) For any taxable year beginning after
December thirty-first, two thousand seventeen, and before January first,
two thousand twenty-six, to the extent that the estate or trust claimed
a deduction for taxes under section one hundred sixty-four of the inter-
nal revenue code that was limited to ten thousand dollars as provided in
subparagraph (B) of paragraph six of subdivision (b) of such section one
hundred sixty-four or was denied as a result of subparagraph (A) of
paragraph six of subdivision (b) of such section one hundred sixty-four,
there shall be subtracted the taxes paid or accrued in that taxable year
by an estate or trust that the estate or trust was not able to deduct
for federal income tax purposes because of such limitation or denial,
other than state and local sales taxes and income taxes described in
paragraph one of subdivision (c) of section 11-1715 of this subchapter.
In determining the makeup of the ten thousand dollars of deduction
claimed by the estate or trust under section one hundred sixty-four of
the internal revenue code, it shall be presumed that the ten thousand
dollars of deduction first comprises the state and local sales taxes or
income taxes the estate or trust accrued or paid during the taxable
year.
A. 10030 926
(2) For any taxable year beginning after December thirty-first, two
thousand seventeen, and before January first, two thousand twenty-six,
there shall be subtracted the miscellaneous itemized deductions as
described in and limited by section sixty-seven of the internal revenue
code, but excluding the deductions described in subsection (e) of
section sixty-seven of such code, but determined without regard to
subsection (g) of such section.
(3) For any taxable year, there shall be added the amount of any
deduction allowed pursuant to section one hundred ninety-nine-A of the
internal revenue code.
§ 11-1721 Credits to trust beneficiary receiving accumulation distrib-
ution. (a) General. A city resident beneficiary of a trust whose city
adjusted gross income includes all or part of an accumulation distrib-
ution by such trust, as defined in section six hundred sixty-five of the
internal revenue code, including a beneficiary who is required to make
the modification required by paragraph thirty-six of subdivision (b) of
section 11-1712 of this subchapter, shall be allowed (1) a credit
against the tax otherwise due under this chapter for all or a propor-
tionate part of any tax paid by the trust under this chapter or under
former title T of chapter forty-six of the code of the preceding munici-
pality, as it was in effect prior to September first, nineteen hundred
eighty-six, for any preceding taxable year which would not have been
payable if the trust had in fact made distributions to its beneficiaries
at the times and in the amounts specified in section six hundred sixty-
six of the internal revenue code; and (2) a credit against the taxes
imposed by this chapter for the taxable year for any income tax imposed
for the taxable year or any prior taxable year by another state of the
United States, a political subdivision thereof, or the District of
Columbia, upon income both derived therefrom and subject to tax under
this chapter, provided that the amount of the credit shall not exceed
the percentage of the tax otherwise due under this chapter determined by
dividing the portion of the income that is both taxable to the trust in
such other jurisdiction and taxable to the beneficiary under this chap-
ter by the total amount of the beneficiary's New York city income.
(b) Limitation. The credits under this section shall not reduce the
tax otherwise due from the beneficiary under this chapter to an amount
less than would have been due if the accumulation distribution or his or
her part thereof were excluded from his or her city adjusted gross
income.
§ 11-1724 Computation of separate tax on the ordinary income portion
of lump sum distributions received by city resident individuals, estates
and trusts. (a) Amount of separate tax. The amount of tax imposed under
section 11-1703 of this chapter for any taxable year, with respect to
the ordinary income portion of a lump sum distribution received by a
city resident individual, estate or trust is an amount equal to five
times the tax which would be imposed by section 11-1701 of this chapter
at the rate set forth in paragraph three of subdivision (a) or (b),
whichever may be applicable, if the recipient of such lump sum distrib-
ution were an individual referred to in such subdivision and the city
taxable income were an amount equal to one-fifth of the excess of:
(1) the total taxable amount of the lump sum distribution for the
taxable year, over
(2) the minimum distribution allowance.
(b) Minimum distribution allowance. For purposes of this section, the
minimum distribution allowance shall be that which is calculated accord-
A. 10030 927
ing to subparagraph (C) of paragraph one of subsection (e) of section
four hundred two of the internal revenue code.
(c) Multiple distributions and distributions of annuity contracts.
For purposes of this section, the rules concerning multiple distrib-
utions and distributions of annuity contracts as specified by paragraph
two of subsection (e) of section four hundred two of the internal reven-
ue code shall be applicable, except that references to "paragraph one
(A)" shall be deemed to be references to this section, and except that
only lump sum distributions, or portions thereof, and distributions of
annuity contracts subject to tax under this chapter shall be included,
and except that references to the secretary shall be deemed to be refer-
ences to the tax commission.
(d) Definitions and special rules. For purposes of this section, the
following provisions shall apply, to the extent applicable to the
taxpayer's federal tax on lump sum distributions: (1) the definitions
and special rules as specified in paragraph four of subsection (e) of
section four hundred two of the internal revenue code; and (2) the
special rules relating to (A) individuals who have attained the age of
fifty before January first, nineteen hundred eighty-six and (B) capital
gains, as specified in paragraphs three, four, five and six of
subsection (h) of section eleven hundred twenty-two of the tax reform
act of nineteen hundred eighty-six as enacted by public law 99-514, but
(i) in the event that paragraph three of such subsection is applicable,
clause (ii) of subparagraph (B) of such paragraph shall be applied using
a rate of one and seventy-two hundredths percent, and (ii) in the event
that paragraph five of such subsection is applicable, the words "five"
and "one-fifth" in subdivision (a) of this section shall be read as
"ten" and "one-tenth", respectively, and subdivision (a) of this section
shall be applied by using the rate of tax specified in subdivision (a)
of section 11-1702 of this chapter as such subdivision was in effect for
taxable years beginning in nineteen hundred eighty-six.
SUBCHAPTER 3
RETURNS AND PAYMENT OF TAX
§ 11-1751 Returns and liabilities. (a) General. On or before the
fifteenth day of the fourth month following the close of a taxable year,
an income tax return under this chapter shall be made and filed by or
for every city resident individual, estate or trust required to file a
New York state personal income tax, including a separate tax on the
ordinary income portion of lump sum distributions, return for the taxa-
ble year.
(b) Husband and wife. (1) If the New York state personal income tax
liability of husband and wife is determined on a separate return, their
city personal income tax liabilities and returns shall be separate.
(2) If the New York state personal income tax liabilities of husband
and wife, other than a husband and wife described in paragraph three of
this subdivision, are determined on a joint return, they shall file a
joint city personal income tax return, and their tax liabilities shall
be joint and several except as provided in paragraphs four and five of
this subdivision and in subsection (e) of section six hundred eighty-
five of the tax law.
(3) If the New York state personal income tax liabilities of husband
and wife, other than a husband and wife described in paragraph three of
this subdivision are determined on a joint return, they shall file a
joint city personal income tax return, and their tax liabilities shall
A. 10030 928
be joint and several except as provided in paragraph five of this subdi-
vision, section 11-1755 of this subchapter and subsection (e) of section
six hundred eighty-five of the tax law.
(4) If either husband or wife is a city resident and the other is a
city nonresident, and their New York state personal income tax liabil-
ities are determined on a joint return:
(A) they may elect to file a joint city personal income tax return as
if both were residents, in which case their city personal income tax
liabilities shall be joint and several except as provided in paragraphs
four and five of this subdivision and in subsection (e) of section six
hundred eighty-five of the tax law, or
(B) they may elect to file a joint city personal income tax return as
if both were residents, in which case their city personal income tax
liabilities shall be joint and several except as provided in paragraph
five of this subdivision, section 11-1755 of this subchapter and
subsection (e) of section six hundred eighty-five of the tax law, or
(C) the resident spouse may elect to file a separate city personal
income tax return, in which case his or her city personal income tax
liability shall be determined as if he or she were filing a separate New
York state personal income tax return.
(5) If a joint return has been made under this subdivision for a taxa-
ble year and only one spouse is liable for past-due support, or a past-
due legally enforceable debt, or a city of New York tax warrant judgment
debt, or an amount of a default in repayment of a guaranteed student,
state university or city university loan of which the state commissioner
of taxation and finance has been notified pursuant to section one
hundred seventy-one-c, one hundred seventy-one-d, one hundred seventy-
one-e, one hundred seventy-one-f or one hundred seventy-one-1 of the tax
law, as the case may be, then an overpayment and interest thereon shall
be credited against such past-due support, or a past-due legally
enforceable debt, or a city of New York tax warrant judgment debt, or
such amount of a default in repayment of a guaranteed student, state
university or city university loan, unless the spouse not liable for
such past-due support, or a past-due legally enforceable debt, or a city
of New York tax warrant judgment debt, or such amount of a default in
repayment of a guaranteed student, state university or city university
loan demands, on a declaration made in accordance with regulations or
instructions prescribed by the state commissioner of taxation and
finance, that the portion of the overpayment and interest attributable
to such spouse not be credited against the past-due support, or a past-
due legally enforceable debt, or a city of New York tax warrant judgment
debt, or amount of a default in repayment of a guaranteed student, state
university or city university loan owed by the other spouse. Upon such
demand, the state commissioner of taxation and finance shall determine
the amount of the overpayment attributable to each spouse in accordance
with regulations prescribed by the state commissioner of taxation and
finance and credit only that portion of the overpayment and interest
thereon attributable to the spouse liable for past-due support, or a
past-due legally enforceable debt, or a city of New York tax warrant
judgment debt, or amount of a default in repayment of a guaranteed
student, state university or city university loan against such past-due
support, or a past-due legally enforceable debt, or a city of New York
tax warrant judgment debt, or such amount of a default in repayment of a
guaranteed student, state university or city university loan. Such
demand may be filed (A) with the return of the spouse not liable for
past-due support or past-due legally enforceable debt, or a city of New
A. 10030 929
York tax warrant judgment debt, or default in repayment of a guaranteed
student, state university, or city university loan or (B) with the
commissioner of taxation and finance within ten days after notification
is provided such spouse by the commissioner of taxation and finance
pursuant to subdivision seven of section one hundred seventy-one-c,
subdivision six of section one hundred seventy-one-d, subdivision seven
of section one hundred seventy-one-e, subdivision seven of section one
hundred seventy-one-f or subdivision six of section one hundred seven-
ty-one-1 of the tax law.
(6) The state commissioner of taxation and finance shall clearly alert
married taxpayers, on all appropriate publications and instructions,
that their liability for tax will be joint and several if they file
joint income tax returns. The state commissioner of taxation and finance
shall include notice of an individual's right to relief from joint and
several liability pursuant to section six hundred fifty-four of the tax
law in the disclosure of rights statement required by section three
thousand four of the tax law and in any notice regarding collection of
tax due with respect to a liability on a joint return.
(c) Decedents. The return for any deceased individual shall be made
and filed by his or her executor, administrator, or other person charged
with his or her property. If a final return of a decedent is for a
fractional part of a year, the due date of such return shall be the
fifteenth day of the fourth month following the close of the twelve-
month period which began with the first day of such fractional part of
the year.
(d) Individuals under a disability. The return for an individual who
is unable to make a return by reason of minority or other disability
shall be made and filed by his or her guardian, committee, fiduciary or
other person charged with the care of his or her person or property
other than a receiver in possession of only a part of his or her proper-
ty, or by his or her duly authorized agent.
(e) Estates and trusts. The return for an estate or trust shall be
made and filed by the fiduciary.
(f) Joint fiduciaries. If two or more fiduciaries are acting jointly,
the return may be made by any one of them.
(h) Tax a debt. Any tax under this chapter, and any increase, interest
or penalty thereon, shall, from the time it is due and payable, be a
personal debt of the person liable to pay the same, to the city of New
York.
(i) Cross reference. For provisions as to information returns by part-
nerships, employers and other persons, see section 11-1758 of this
subchapter.
§ 11-1752 Time and place for filing returns and paying tax. (a)
Except as provided in subdivision (b) of this section, a person required
to make and file a return under this chapter shall, without assessment,
notice or demand, pay any tax due thereon to the commissioner of taxa-
tion and finance on or before the date fixed for filing such return,
determined without regard to any extension of time for filing the
return. The commissioner shall prescribe by regulation the place for
filing any return, statement, or other document required pursuant to
this chapter and for payment of any tax.
(b) The commissioner of taxation and finance may allow individuals who
have income only from wages, salaries, tips and like remuneration for
services performed as an employee, interest, dividends and unemployment
compensation to elect to have the commissioner compute the tax due. To
provide for expeditious and uniform administration of the tax computa-
A. 10030 930
tions which involve numerous variables, the commissioner may further
qualify, with regard to period of residency, deductions, credits,
exemptions, amount and character of gross income, and any other appro-
priate factors relative to calculation of tax, those individuals who may
elect to have their taxes computed by the commissioner. Any such
election shall be made on the form prescribed by the commissioner for
this purpose. If a qualified taxpayer elects to have the commissioner
compute the tax, the amount determined by the commissioner shall be paid
(i) within ten days from the date of the issuance of a notice and demand
therefor or (ii) on the date fixed for filing such return, determined
without regard to any extension of time for filing, whichever is later.
§ 11-1753 Signing of returns and other documents. (a) General. Any
return, statement or other document required to be made pursuant to this
chapter shall be signed in accordance with regulations or instructions
prescribed by the tax commission. The fact that an individual's name is
signed to a return, statement, or other document, shall be prima facie
evidence for all purposes that the return, statement or other document
was actually signed by such individual.
(b) Partnerships. Any return, statement or other document required of
a partnership shall be signed by one or more partners. The fact that a
partner's name is signed to a return, statement, or other document,
shall be prima facie evidence for all purposes that such partner is
authorized to sign on behalf of the partnership.
(c) Certifications. The making or filing of any return, statement or
other document or copy thereof required to be made or filed pursuant to
this chapter, including a copy of a federal return, shall constitute a
certification by the person making or filing such return, statement or
other document or copy thereof that the statements contained therein are
true and that any copy filed is a true copy.
§ 11-1754 Change of resident status during year. (a) General. If an
individual changes his or her status during his or her taxable year from
city resident to city nonresident, or from city nonresident to city
resident, such individual shall file one return as a resident for the
portion of the year during which he or she is a city resident, and a
return under chapter nineteen of this title, for the portion of the year
during which he or she is a city nonresident, subject to such exceptions
as the tax commission may prescribe by regulation.
(b) City taxable income as city resident. The city taxable income for
the portion of the year during which he or she is a city resident shall
be determined, except as provided in subdivision (c) of this section, as
if his or her taxable year for federal income tax purposes were limited
to the period of his or her city resident status.
(c) Special accruals.
(1) If an individual changes his or her status from city resident to
city nonresident, he or she shall, regardless of his or her method of
accounting, accrue for the portion of the taxable year prior to such
change of status any items of income, gain, loss or deduction accruing
prior to the change of status, if not otherwise properly includible,
whether or not because of an election to report on an installment basis,
or allowable for city income tax purposes for such portion of the taxa-
ble year or for a prior taxable year. The amounts of such accrued items
shall be determined with the applicable modifications described in
sections 11-1712 and 11-1715 of this chapter as if such accrued items
were includible or allowable for federal income tax purposes.
(2) If an individual changes his or her status from city nonresident
to city resident, he or she shall, regardless of his or her method of
A. 10030 931
accounting, accrue for the portion of the taxable year prior to such
change of status any items of income, gain, loss or deduction accruing
prior to the change of status, other than items derived from or
connected with New York state sources, if not otherwise properly inclu-
dible, whether or not because of an election to report on an installment
basis, or allowable for federal income tax purposes for such portion of
the taxable year or for a prior taxable year. The amounts of such
accrued items shall be determined with the applicable modifications
described in sections 11-1712 and 11-1715 of this chapter as if such
accrued items were includible or allowable for federal income tax
purposes.
(3) No item of income, gain, loss or deduction which is accrued under
this subdivision shall be taken into account in determining city
adjusted gross income or the city itemized deduction for any subsequent
taxable period.
(4) The accruals under this subdivision shall not be required if the
individual files with the tax commission a bond or other security
acceptable to the tax commission, conditioned upon the inclusion of
amounts accruable under this subdivision in city adjusted gross income
for one or more subsequent taxable years as if the individual had not
changed his or her resident status.
(5) The provisions of subdivisions (a), (b) and paragraphs one through
four of this subdivision shall apply if an individual changes his or her
status from a city resident to city nonresident or from a city nonresi-
dent to a city resident during a taxable year, or at the beginning of a
taxable year, as a result of a change of domicile or as a result of
becoming a city resident or city nonresident based on the definition
contained in subparagraph (B) of paragraph one of subdivision (b) of
section 11-1705 of this chapter.
(6) Except as provided in this paragraph, where an individual who is a
member of a partnership or shareholder of an S corporation changes
status from city resident to city nonresident, or from city nonresident
to city resident, the portion of the distributive or pro rata share of
income, gain and loss, less deductions attributable thereto, from a
partnership or S corporation shall be allocated to the resident and
nonresident periods of the partner or shareholder on a proportionate
basis throughout the taxable year of the partnership or S corporation.
In such event, the portion of the distributive or pro rata share allo-
cated to the period of residency shall be determined based on the number
of days of residency within the reporting period of the partnership or S
corporation over the total number of days in the reporting period of the
partnership or S corporation. Provided, however, that the commissioner
may require, or the individual may elect, to accrue to the period of
residence, and the period of nonresidence, the portion of the distribu-
tive or pro rata share of partnership or S corporation income, gain and
loss, less deductions attributable thereto, accruing during the individ-
ual's respective resident and nonresident periods in a manner that
reflects the date of accrual of said income, gain and loss by the part-
nership or S corporation.
(7) Except as provided in this paragraph, where an individual who is a
beneficiary of an estate or trust changes status from city resident to
city nonresident, or from city nonresident to city resident, the portion
of any estate or trust income credited, distributable, payable or
required to be distributed to such beneficiary shall be allocated to the
resident and nonresident periods of the beneficiary on a proportionate
basis throughout the taxable year of the estate or trust. In such event,
A. 10030 932
the portion of such estate or trust income allocated to the period of
residency shall be determined based on the number of days of residency
within the reporting period of the estate or trust over the total number
of days in the reporting period of the estate or trust. Provided, howev-
er, that the commissioner may require, or the beneficiary may elect, to
accrue to the period of residence, and the period of nonresidence, the
portion of such estate or trust income accruing during the beneficiary's
respective resident and nonresident periods in a manner that reflects
the date of accrual of said estate or trust income by the estate or
trust.
(d) City minimum tax. Where two returns are required under this
section, the total of the taxes due thereon shall not be less than would
be due if the city taxable incomes reportable on the two returns were
included in one return.
(e) Proration. Where a return is required under this section, the
city personal exemptions allowable under section 11-1716 of this chapter
shall be prorated, under regulations of the tax commission, to reflect
the portions of the entire taxable year during which the individual was
a resident.
(f) Standard deduction. Where a return is required under this
section, the city standard deduction allowable on such return shall be
the amount allowed pursuant to the provisions of section 11-1714 of this
chapter, prorated according to the period covered by the return.
(g) Trusts. If the status of a trust changes during its taxable year
from city resident to city nonresident, or from city nonresident to city
resident, the fiduciary shall file one return as a city resident trust
for the portion of the year during which the trust is a city resident
trust, and one return under chapter nineteen of this title for the
portion of the year during which the trust is a city nonresident trust,
subject to such exceptions as the tax commission may prescribe by regu-
lations. The provisions of subdivisions (b), (c), (d) and (e) of this
section shall apply for the purposes of this subdivision, except to the
extent that any of such provisions may be inconsistent with the
provisions of section 11-1718 of this chapter, and except that the term
"individual" shall be read as "trust", the term "city adjusted gross
income" shall be read as "city taxable income", reference to "gain"
shall include any modification for includible gain under subdivision
five of section 11-1718 of this chapter, and the phrase "personal
exemptions allowable under section 11-1716 of this chapter" shall be
read as "city exemptions allowable under section 11-1718 of this chap-
ter."
(h) Lump sum distributions. If the status of a taxpayer changes
during his or her taxable year from city resident to city nonresident,
or from city nonresident to city resident, the taxpayer shall, regard-
less of his method of accounting, accrue for the portion of the taxable
year prior to such change of status the total taxable amount of a lump
sum distribution accruing prior to the change of status, if the ordinary
income portion thereof is not otherwise subject to tax under section
11-1703 of this chapter for such portion of the taxable year or for a
prior taxable year. No ordinary income portion of a lump sum distrib-
ution the total taxable amount of which is accrued under this subdivi-
sion shall be subject to tax under section 11-1703 of this chapter for
any subsequent taxable period. The accrual under this subdivision shall
not be required if the taxpayer files with the tax commission a bond or
other security acceptable to the tax commission, conditioned upon the
payment of tax under section 11-1703 of this chapter, with respect to
A. 10030 933
such amount accruable under this subdivision, for a subsequent taxable
year as if the taxpayer had not changed its resident status.
(i) Deduction for two-earner married couples. Where a return is
required under this section, the amount of deduction under paragraph
twenty-nine of subdivision (c) of section 11-1712 of this chapter shall
be equal to ten percent of the lesser of:
(1) thirty thousand dollars, pro rated according to the period covered
by the return or
(2) the qualified earned income of the spouse with the lower qualified
earned income for the period covered by the return.
§ 11-1755 Relief from joint and several liability on joint return.
(a) General. The provisions of section six thousand fifteen of the
internal revenue code applicable to the liability of individuals who
file joint income tax returns shall apply to the same extent as if such
section of such code were contained in and made part of this section,
except to the extent that any provision of such section is either incon-
sistent with or not relevant to this chapter and except as modified in
subdivision (b) of this section, or with such other modifications as may
be necessary to adapt the language of such provisions to the provisions
of this chapter.
(b) Modifications. Section six thousand fifteen of the internal reven-
ue code shall be read as modified by this subdivision.
(1) "Secretary" shall be read as "state commissioner of taxation and
finance".
(2) "Internal revenue service" shall be read as "department of taxa-
tion and finance".
(3) "Tax court" shall be read as "division of tax appeals".
(4) In the heading of subsection (a) and in clause (ii) of subpara-
graph (A) of paragraph three of subsection (c), the phrase "section
6013(d)(3)" shall be read as "paragraphs two and three of subdivision
(b) of section 11-1751 of this chapter".
(5) In paragraph three of subsection (b), the phrase "section
6662(d)(2)(A)" shall be read as "subdivision (p) of section 11-1785 of
this chapter".
(6) In subparagraph (B) of paragraph two of subsection (d), the phrase
"section 1 or 55" shall be read as "section 11-1701 of this chapter".
(7) In clause (i) of subparagraph (B) of paragraph one of subsection
(e), the phrase "section 6851 or 6861" shall be read as "section 11-1794
of this chapter" and "section 7485" shall be read as "subdivision (c) of
section 11-1790 of this chapter".
(8) In paragraph two of subsection (e), the phrase "section 6502"
shall be read as "section one hundred seventy-four-a of the tax law and
section 11-1792 of this chapter".
(9) In subparagraph (A) of paragraph three of subsection (e), the
phrase "section 6512(b), 7121, or 7122" shall be read as "subdivision
fifteenth, eighteenth, eighteenth-a or eighteenth-d of section one
hundred seventy-one of the tax law and subdivision (b) of section
11-1789 of this chapter".
(10) The following provisions of such section six thousand fifteen
shall be disregarded: (A) The phrase "notwithstanding the provisions of
section 7421(a)" contained in clause (ii) of subparagraph (B) of para-
graph one of subsection (e); and (B) subparagraph (C) of paragraph three
of subsection (e).
(c) Federal determination. If an individual is relieved of a federal
income tax liability pursuant to subsection (b) of section six thousand
fifteen of the internal revenue code, there shall be a rebuttable
A. 10030 934
presumption that such individual shall also be entitled to equivalent
relief from liability under this section, to the extent that such indi-
vidual has an understatement of tax under this chapter for the same
taxable year that is attributable to the same erroneous item or items to
which the individual's federal income tax liability was attributable.
§ 11-1757 Extensions of time. (a) General. The commissioner of taxa-
tion and finance may grant a reasonable extension of time for payment of
tax or estimated tax, or any installment, or for filing any return,
statement, or other document required pursuant to this chapter, on such
terms and conditions as it may require. Except for a taxpayer who is
outside the United States or who intends to claim nonresident status
pursuant to clause (ii) of subparagraph (A) of paragraph one of subdivi-
sion (b) of section 11-1705 of this chapter, no such extension for
filing any return, statement or other document, shall exceed six months.
(b) Furnishing of security. If any extension of time is granted for
payment of any amount of tax, the tax commission may require the taxpay-
er to furnish a bond or other security in an amount not exceeding twice
the amount for which the extension of time for payment is granted on
such terms and conditions as the tax commission may require.
§ 11-1758 Requirements concerning returns, notices, records and state-
ments. (a) General. The tax commission may prescribe regulations as to
the keeping of records, the content and form of returns and statements,
and the filing of copies of federal income tax returns and determi-
nations. The tax commission may require any person, by regulation or
notice served upon such person, to make such returns, render such state-
ments, or keep such records, as the tax commission may deem sufficient
to show whether or not such person is liable under this chapter for tax
or for collection of tax.
(b) Identifying numbers. (1) When required by regulations prescribed
by the tax commission:
(A) Inclusion in returns. Any person required under the authority of
this chapter to make a return, statement, or other document shall
include in such return, statement or other document such identifying
number as may be prescribed for securing proper identification of such
person.
(B) Furnishing number to other persons. Any person with respect to
whom a return, statement or other document is required under the author-
ity of this chapter to be made by another person shall furnish to such
other person such identifying number as may be prescribed for securing
his or her proper identification.
(C) Furnishing number of another person. Any person required under the
authority of this chapter to make a return, statement, or other document
with respect to another person shall request from such other person, and
shall include in any such return, statement, or other document, such
identifying number as may be prescribed for securing proper identifica-
tion of such other person.
(2) Limitation.
(A) Except as provided in subparagraph (B) of this paragraph, a return
of any person with respect to his or her liability for tax, or any
statement or other document in support thereof, shall not be considered
for purposes of subparagraphs (B) and (C) of paragraph one of this
subdivision as a return, statement or other document with respect to
another person.
(B) For purposes of subparagraphs (B) and (C) of paragraph one of this
subdivision, a return of an estate or trust with respect to its liabil-
ity for tax, and any statement or other document in support thereof,
A. 10030 935
shall be considered as a return, statement, or other document with
respect to each beneficiary of such estate or trust.
(3) Requirement of information. For purposes of this section, the tax
commission is authorized to require such information as may be necessary
to assign an identifying number to any person.
(c) Partnerships and S corporations.
(1) Partnerships. Every partnership having a city resident partner
shall make a return for the taxable year setting forth all items of
income, gain, loss and deduction and such other pertinent information as
the tax commission may by regulations and instructions prescribe. Such
return shall be filed on or before the fifteenth day of the fourth month
following the close of each taxable year except that the due date for
the return of a partnership consisting entirely of nonresident aliens
shall be the date prescribed for the filing of its federal partnership
return for the taxable year. For purposes of this paragraph, "taxable
year" means a year or a period which would be a taxable year of the
partnership if it were subject to tax under this chapter.
(2) S corporations. Every S corporation for which the election
provided for in subsection (a) of section six hundred sixty of the tax
law is in effect shall make a return setting forth all items of income,
loss and deduction and such other pertinent information as the tax
commission may by regulations and instructions prescribe. Such return
shall be filed on or before the fifteenth day of the third month follow-
ing the close of each taxable year.
(d) Information at source. The tax commission may prescribe regu-
lations and instructions requiring returns of information to be made and
filed on or before February twenty-eighth of each year as to the payment
or crediting in any calendar year of amounts of six hundred dollars or
more to any taxpayer under this chapter. Such returns may be required of
any persons, including lessees or mortgagors of real or personal proper-
ty, fiduciaries, employers, and all officers and employees of this
state, or of any municipal corporation or political subdivision of this
state, having the control, receipt, custody, disposal or payment of
interest, rents, salaries, wages, premiums, annuities, compensations,
remunerations, emoluments or other fixed or determinable gains, profits
or income, except interest coupons payable to bearer. A duplicate of the
statement as to tax withheld on wages, required to be furnished by an
employer to an employee, shall constitute the return of information
required to be made under this section with respect to such wages.
(e) Notice of qualification as receiver, etc. Every receiver, trustee
in bankruptcy, assignee for benefit of creditors, or other like fiduci-
ary shall give notice of his or her qualification as such to the tax
commission, as may be required by regulation.
(g) Requirements applicable to tax return preparer.
(1) Signature of tax return preparer. Any individual who is a tax
return preparer and prepares any return or claim for refund, shall sign
such return or claim for refund in accordance with regulations or
instructions prescribed by the commissioner of taxation and finance.
(2) Furnishing identifying numbers. Any return or claim for refund
which is prepared by a tax return preparer shall include the identifying
number of the preparer required by paragraph one of this subdivision to
sign such return or claim for refund. In addition, where such individual
preparer is an employee of an employer which is a tax return preparer
with respect to such return or claim for refund, or where such preparer
is a partner in a partnership which is a tax return preparer with
respect to such return or claim for refund, then such return or claim
A. 10030 936
for refund shall also include the identifying number of such employer or
partnership. Such identifying numbers shall be as prescribed by the
commissioner of taxation and finance in order to secure the proper iden-
tification of such individual preparer, partnership or employer. The
responsibility for the inclusion of such identifying numbers shall be as
set forth in paragraph two of subdivision (t) of section 11-1785 of this
chapter.
(3) Furnishing copy to taxpayer. Any person who is a tax return
preparer with respect to any return or claim for refund shall furnish a
completed copy of such return or claim for refund to the taxpayer not
later than the time such return or claim for refund is presented for
such taxpayer's signature.
(4) Copy or list to be retained by tax return preparer. Any person who
is a tax return preparer with respect to any return or claim for refund
shall for a three year retention period described in paragraph nine of
this subdivision:
(A) retain a completed copy of such return or claim for refund, or
retain, on a list, the name and identification number of the taxpayer
for whom such return or claim was prepared, and
(B) make such copy or list available for inspection upon request by
the commissioner of taxation and finance.
(5) Tax return preparer defined. For purposes of this chapter, the
term "tax return preparer" means any person who prepares for compen-
sation, or who employs or engages one or more persons to prepare for
compensation any return or claim for refund. The preparation of a
substantial portion of a return or claim for refund shall be treated as
if it were the preparation of such return or claim for refund. Where an
employer and one or more employees of such employer are tax return
preparers with respect to the same return or claim for refund, or where
a partnership and one or more partners in such partnership are tax
return preparers with respect to the same return or claim for refund,
for purposes of paragraphs three and four of this subdivision, such
employer or such partnership shall be deemed to be the sole tax return
preparer. A person shall not be a "tax return preparer" merely because
such person:
(A) furnishes typing, reproducing, or other mechanical assistance,
(B) prepares a return or claim for refund of the employer, or of an
officer or employee of the employer, by whom he or she is regularly and
continuously employed, or
(C) prepares as a fiduciary a return or claim for refund for any
person.
(6) Person defined. For purposes of this subdivision, the term
"person" includes an individual, corporation, including a dissolved
corporation, or partnership.
(7) Return defined. For purposes of this subdivision, the term
"return" shall mean any return required under this chapter.
(8) Claim for refund defined. For purposes of this subdivision, the
term "claim for refund" shall mean a claim for refund of or credit
against any tax imposed under this chapter, and shall include any claim
for refund of any credit treated as an overpayment of tax under this
chapter.
(9) Retention period defined. For purposes of this subdivision, the
term "retention period" shall mean:
(A) in the case of a tax return, the period ending the later of three
years after the due date of such return, without regard to extensions,
A. 10030 937
or three years after the date such return was presented to the taxpayer
for such taxpayer's signature, and
(B) in the case of a claim for refund, the period ending three years
after such claim for refund was presented to the taxpayer for such
taxpayer's signature.
(10) Mandatory electronic filing by certain tax return preparers.
(A)(i) If a tax return preparer prepared more than two hundred original
returns during the calendar year beginning on January first, two thou-
sand five, and if, in the calendar year beginning on January first, two
thousand six, such tax return preparer prepares one or more authorized
returns using tax software, then, for such calendar year two thousand
six and for each subsequent calendar year thereafter, all authorized
returns prepared by such tax return preparer shall be filed electron-
ically, in accordance with instructions prescribed by the commissioner
of taxation and finance.
(ii) If a tax return preparer prepared more than one hundred original
returns during any calendar year beginning on or after January first,
two thousand six, and if, in any succeeding calendar year such tax
return preparer prepares one or more authorized returns using tax soft-
ware, then, for such succeeding calendar year and for each subsequent
calendar year thereafter, all authorized returns prepared by such tax
return preparer shall be filed electronically, in accordance with
instructions prescribed by the commissioner of taxation and finance.
(B) For purposes of this paragraph: (i) "Electronic" means computer
technology; provided, however, that the commissioner of taxation and
finance may, in instructions, provide that use of barcode technology
will also satisfy the mandatory electronic filing requirements of this
section.
(ii) "Authorized return" means any return required under this article
which the commissioner of taxation and finance has authorized to be
filed electronically.
(iii) "Original return" means a return required under this article
that is filed, without regard to extensions, during the calendar year
for which that return is required to be filed.
(iv) "Tax software" means any computer software program intended for
tax return preparation purposes.
§ 11-1759 Report of federal changes, corrections or disallowances. If
the amount of a taxpayer's federal taxable income, total taxable amount
or ordinary income portion of a lump sum distribution or includible gain
of a trust reported on his federal income tax return for any taxable
year, or the amount of any claim of right adjustment, is changed or
corrected by the United States internal revenue service or other compe-
tent authority, or as the result of a renegotiation of a contract or
subcontract with the United States or the amount an employer is required
to deduct and withhold from wages for federal income tax withholding
purposes is changed or corrected by such service or authority or if a
taxpayer's claim for credit or refund of federal income tax is disal-
lowed in whole or in part, the taxpayer or employer shall report such
change or correction or disallowance within ninety days after the final
determination of such change, correction, renegotiation, or disallow-
ance, or as otherwise required by the commissioner, and shall concede
the accuracy of such determination or state wherein it is erroneous. The
allowance of a tentative carryback adjustment based upon a net operating
loss carryback pursuant to section sixty-four hundred eleven of the
internal revenue code shall be treated as a final determination for
purposes of this section. Any taxpayer filing an amended federal income
A. 10030 938
tax return and any employer filing an amended federal return of income
tax withheld shall also file within ninety days thereafter an amended
return under this chapter, and shall give such information as the
commissioner may require. The commissioner may by regulation prescribe
such exceptions to the requirements of this section as he or she deems
appropriate. For purposes of this section, (i) the term "taxpayer" shall
include a partnership having a resident partner or having any income
derived from New York sources, and a corporation with respect to which
the taxable year of such change, correction, disallowance or amendment
is a year with respect to which the election provided for in subsection
(a) of section six hundred sixty of the tax law is in effect, and (ii)
the term "federal income tax return" shall include the returns of income
required under sections six thousand thirty-one and six thousand thir-
ty-seven of the internal revenue code. In the case of such a corpo-
ration, such report shall also include any change or correction of the
taxes described in paragraphs two and three of subsection (f) of section
thirteen hundred sixty-six of the internal revenue code. Reports made
under this section by a partnership or corporation shall indicate the
portion of the change in each item of income, gain, loss or deduction,
and, in the case of a corporation, of each change in, or disallowance of
a claim for credit or refund of such tax, allocable to each partner or
shareholder and shall set forth such identifying information with
respect to such partner or shareholder as may be prescribed by the
commissioner.
§ 11-1761 Change of election. Any election expressly authorized by
this chapter may be changed on such terms and conditions as the tax
commission may prescribe by regulation.
§ 11-1762 Computation of tax where taxpayer restores substantial
amount held under claim of right. (a) General. If:
(1) an item was included in city adjusted gross income for a prior
taxable year, or years, because it appeared that the taxpayer had an
unrestricted right to such item, and
(2) for the current taxable year the provisions of paragraph five of
subsection (a) of section thirteen hundred forty-one of the internal
revenue code apply to such item, then the tax imposed by this chapter
for the taxable year shall be an amount equal to
(3) the tax for the taxable year computed without regard to this
section, minus
(4) the decrease in tax under this chapter for the prior taxable year,
or years, which would result solely from the exclusion of such item, or
portion thereof, from city adjusted gross income for such prior taxable
year, or years.
(b) Special rules. If the decrease in tax ascertained under paragraph
four of subdivision (a) of this section exceeds the tax imposed by this
chapter for the taxable year, such excess shall be considered a payment
of tax on the last day prescribed by law for the payment of tax for the
taxable year, and shall be refunded or credited in the same manner as if
it were an overpayment for such taxable year.
SUBCHAPTER 4
WITHHOLDING OF TAX
§ 11-1771 Requirement of withholding tax from wages. (a) General. (1)
Every employer maintaining an office or transacting business within this
city or state and making payment on and after January first, nineteen
hundred seventy-seven of any wages taxable under this chapter, or under
A. 10030 939
section two of chapter eight hundred eighty-two of the laws of nineteen
hundred seventy-five, as amended by chapter eight hundred eighty-six of
the laws of nineteen hundred seventy-five, shall deduct and withhold
from such wages for each payroll period a tax computed in such manner as
to result, so far as practicable, in withholding from the employee's
wages during each calendar year an amount substantially equivalent to
the tax reasonably estimated to be due under this chapter or such
section two resulting from the inclusion in the employee's city adjusted
gross income of his or her wages received during such calendar year.
The method of determining the amount to be withheld shall be prescribed
by regulations of the tax commission, with due regard to the city with-
holding exemptions of the employee and the sum of any credits allowable
against his or her tax. The section shall not apply to payments by the
United States for service in the armed forces of the United States so
long as the right to require deduction and withholding of tax from such
payments is prohibited by the laws of the United States. Service in the
armed forces of the United States shall have the same meaning as when
used in a comparable context in the laws of the United States relating
to withholding of city income taxes.
(2) The tax commission may provide, by regulations, for withholding:
(A) from remuneration for services performed by an employee for his or
her employer which does not constitute wages, and
(B) from remuneration for services performed by an employee for his or
her employer which does not constitute wages, and (B) from any other
type of payment, with respect to which the tax commission finds that
withholding would be appropriate under the provisions of this chapter,
if the employer and the employee, or in the case of any other type of
payment the person making and the person receiving the payment, agree to
such withholding. Such agreement shall be made in such form and manner
as the tax commission may by regulations provide. For purposes of this
chapter, remuneration or other payments with respect to which such
agreement is made shall be treated as if they were wages paid by an
employer to an employee to the extent that such remuneration is paid or
other payments are made during the period for which the agreement is in
effect.
(3) The tax commission shall provide by regulation for an exemption
from withholding for: (i) employees under eighteen years of age, (ii)
employees under twenty-five years of age who are full-time students and
(iii) employees over sixty-five years of age, provided such employees
had no income tax liability in the prior year and can reasonably antic-
ipate none in the current year.
(b) Extension of withholding to certain periodic payments and gambling
winnings.
(1) For purposes of this chapter, any payment subject to withholding,
within the meaning of paragraph two of this subdivision, shall be treat-
ed as if it were wages paid by an employer to an employee.
(2) Payments subject to withholding. For purposes of paragraph one of
this subdivision, a payment subject to withholding means:
(A) Any supplemental unemployment compensation benefit paid to an
individual to the extent includible in such individual's city adjusted
gross income.
(B) Any member or employee contributions to a retirement system or
pension fund picked up by the employer pursuant to subdivision f of
section five hundred seventeen or subdivision d of section six hundred
thirteen of the retirement and social security law or section 13-225.1,
13-327.1, 13-125.1, 13-125.2 or 13-521.1 of the code of the preceding
A. 10030 940
municipality or subdivision nineteen of section twenty-five hundred
seventy-five of the education law.
(C) Any payment of an annuity to an individual to the extent includi-
ble in such individual's city adjusted gross income, if at the time the
payment is made a request that such annuity be subject to withholding
under this chapter is in effect.
(D) Any payment of winnings from a wager placed in a lottery conducted
by the division of the lottery, if the proceeds from such wager exceed
five thousand dollars and such proceeds are payable pursuant to a prize
claim made by an individual who was a resident of the city at the time
of the selection of the prize winning lottery ticket.
(F) Any amount deducted or deferred from an employee's salary under a
flexible benefits program established pursuant to section twenty-three
of the general municipal law or section one thousand two hundred ten-a
of the public authorities law.
(G) Any amount by which an employee's salary is reduced pursuant to
the provisions of subdivision b of section 12-126.1 and subdivision b of
section 12-126.2 of the code of the preceding municipality.
(3) Additional provisions applicable to this subdivision.
(A) Request for annuity withholding. A request that an annuity be
subject to withholding under this chapter shall be made by the payee in
writing to the person making the annuity payments.
Such a request may, notwithstanding any provision of law to the
contrary, be terminated by furnishing to the person making the payments
a written statement of termination. Such a request for withholding or
statement of termination shall take effect in such manner as the commis-
sioner of taxation and finance shall prescribe.
(B) Withholding on lottery winnings upon change of residence. If a
payee of lottery winnings subject to the provisions of subparagraph (D)
of paragraph two of this subdivision changes status from resident to
nonresident, withholding in accordance with such subparagraph shall
constitute other security acceptable to the commissioner of taxation and
finance within the meaning of paragraph four of subdivision (c) of
section 11-1754 of this chapter, unless such payee elects, in such
manner as the commissioner of taxation and finance shall prescribe, to
apply the provisions of paragraph one of such subdivision (c) to the
proceeds, in which case withholding under this subdivision shall no
longer apply to such proceeds.
(C) Proceeds. For purposes of subparagraphs (D) and (E) of paragraph
two of this subdivision, proceeds from a wager shall be determined by
reducing the amount received by the amount of the wager.
(D) Taxes withheld at maximum rate. The tax withheld on any payment
subject to withholding under subparagraph (D) or (E) of paragraph two of
this subdivision shall be withheld at the highest rate of tax on city
taxable income, without any allowance for deductions or exemptions, in
effect under this chapter for the taxable year in which the payment is
made.
(E) Determination of residence. For purposes of applying the
provisions of subparagraphs (D) and (E) of paragraph two of this subdi-
vision, any payor of proceeds shall determine the residence of the payee
of such proceeds in accordance with regulations or instructions of the
commissioner of taxation and finance or, in the absence of any such
regulations or instructions, in accordance with the address of the payee
required under the provisions of paragraph six of subsection (q) of
section thirty-four hundred two of the internal revenue code.
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(b) Extension of withholding to unemployment compensation benefits,
annuity payments, and lottery winnings.
(1) For purposes of this chapter:
(A) any supplemental unemployment compensation benefit paid to an
individual to the extent includible in such individual's city adjusted
gross income,
(B) any payment of an annuity to an individual to the extent includi-
ble in such individual's city adjusted gross income, if at the time the
payment is made a request that such annuity be subject to withholding
under this chapter is in effect, and
(C) any periodic payment (but only where such payment is part of a
series of payments extending over a period greater than one year), of
lottery winnings by the division of the lottery, if at the time the
payment is made a request that such lottery winnings be subject to with-
holding under this chapter is in effect, shall be treated as if it were
a payment of wages by an employer to an employee for a payroll period.
(D) any member or employee contributions to a retirement system or
pension fund picked up or paid by the employer for members of the
Manhattan and Bronx surface transportation authority pension plan and
treated as employer contributions in determining income tax treatment
under subdivision (h) of section four hundred fourteen of the Internal
Revenue Code.
(2) Request for withholding. A request that an annuity be subject to
withholding under this chapter shall be made by the payee in writing to
the person making the annuity payments, and a request that lottery
winnings be subject to withholding under this chapter shall be made by
the payee in writing to the division of the lottery, in the manner
prescribed by the commissioner of taxation and finance. A request that
an annuity be subject to withholding may, notwithstanding any provision
of law to the contrary, be terminated by furnishing to the person making
the payments a written statement of termination. A request that lottery
winnings be subject to withholding under this chapter shall not be revo-
cable while the payee is a nonresident, and shall constitute other secu-
rity acceptable to the tax commission within the meaning of paragraph
four of subdivision (c) of section 11-1754 of this chapter.
Such a request for withholding or statement of termination shall take
effect in such manner as the commissioner of taxation and finance shall
provide by regulation.
(c) Withholding exemptions. For purposes of this section:
(1) The number of city withholding exemptions which an employee
receiving wages taxable under this chapter may claim shall not exceed
the number of city exemptions allowed pursuant to the provisions of
section 11-1716 of this chapter and such additional city withholding
exemptions as may be prescribed by regulations or instructions of the
commissioner of taxation and finance, taking into account the applicable
standard deduction and such other factors as he or she finds appropri-
ate.
(2) The amount of each city withholding exemption shall be the amount
of the city exemption allowed pursuant to the provisions of section
11-1716 of this chapter.
(3) Withholding exemption certificate. An employee shall be required
to file with his or her employer a withholding exemption certificate in
accordance with regulations or instructions prescribed by the commis-
sioner of taxation and finance.
§ 11-1772 Information statement for employee. Every employer required
to deduct and withhold tax under this chapter from the wages of an
A. 10030 942
employee, or who would have been required so to deduct and withhold tax
if the employee had claimed no more than one withholding exemption,
shall furnish to each such employee in respect of the wages paid by such
employer to such employee during the calendar year on or before February
fifteenth of the succeeding year, or, if his or her employment is termi-
nated before the close of such calendar year, within thirty days from
the date on which the last payment of the wages is made, a written
statement as prescribed by the tax commission showing the amount of
wages paid by the employer to the employee, the amount deducted and
withheld as tax, and such other information as the tax commission shall
prescribe.
§ 11-1773 Credit for tax withheld. Wages upon which tax is required
to be withheld shall be taxable under this chapter as if no withholding
were required, but any amount of tax actually deducted and withheld
under this chapter in any calendar year shall be deemed to have been
paid to the tax commission on behalf of the person from whom withheld,
and such person shall be credited with having paid that amount of tax
for the taxable year beginning in such calendar year.
For a taxable year of less than twelve months, the credit shall be
made under regulations of the tax commission.
§ 11-1774 Employer's return and payment of withheld taxes. (a) Gener-
al. Every employer required to deduct and withhold tax under this chap-
ter shall file a withholding return and pay over to the tax commission
or to a depository designated by the tax commission, the taxes so
required to be deducted and withheld, as hereafter prescribed.
(1) If, after having made a payroll, an employer has been required to
deduct and withhold, but has not paid over, a cumulative aggregate
amount of seven hundred dollars or more of tax during a calendar quar-
ter, such employer shall file a return and pay over the tax. If an
employer was required to remit a cumulative aggregate amount of less
than fifteen thousand dollars in withholding tax during the calendar
year which precedes the previous calendar year, the tax shall be paid
over on or before the fifth business day following the date of making
such a payroll. If an employer was required to remit a cumulative aggre-
gate amount more than or equal to fifteen thousand dollars in withhold-
ing tax during the calendar year which precedes the previous calendar
year, the tax shall be paid over on or before the third business day
following the date of making such a payroll. In the case of an "educa-
tional organization" as defined in paragraph two of subsection (a) of
section nine of the tax law or a "health care provider" as defined in
paragraph four of subsection (a) of section nine of the tax law, the tax
shall be paid over on or before the fifth business day following the
date of making such a payroll.
(2) If, at the close of any calendar quarter, an employer has been
required to deduct and withhold, but has not paid over, a cumulative
aggregate amount of less than seven hundred dollars of tax during such
calendar quarter, such employer shall pay over the tax with the quarter-
ly combined withholding, wage reporting and unemployment insurance
return required to be filed for such quarter by paragraph four of this
subdivision, on or before the last date prescribed by such paragraph for
filing such return.
(3) If an employer makes more than one payroll per week, then such
employer shall determine the applicability of the rules described in
paragraphs one and two of this subdivision measured by the last payroll
made within the week by such employer; provided, however, that in any
week in which the end of a quarter occurs between the making of payrolls
A. 10030 943
by an employer, any tax required to be deducted and withheld in a
payroll or payrolls made during such week prior to or on the end of the
quarter shall be paid over. If an employer was required to remit a cumu-
lative aggregate amount of less than fifteen thousand dollars in with-
holding tax during the calendar year preceding the previous calendar
year, the tax shall be paid over on or before the fifth business day
following the date of making the last payroll in such quarter. If an
employer was required to remit a cumulative aggregate amount more than
or equal to fifteen thousand dollars in withholding tax during the
calendar year preceding the previous calendar year, the tax shall be
paid over on or before the third business day following the date of
making the last payroll in such quarter. In the case of an "educational
organization" as defined in paragraph two of subsection (a) of section
nine of the tax law or a "health care provider" as defined in paragraph
four of subsection (a) of section nine of the tax law, the tax shall be
paid over on or before the fifth business day following the date of
making such a payroll. For purposes of this paragraph, the term "week"
shall mean the period Sunday through Saturday.
(4)(A) All employers described in paragraph one of subdivision (a) of
section 11-1771 of this subchapter, including those whose wages paid are
not sufficient to require the withholding of tax from the wages of any
of their employees, all employers required to provide the wage reporting
information for the employees described in subdivision one of section
one hundred seventy-one-a of the tax law, and all employers liable for
unemployment insurance contributions or for payments in lieu of such
contributions pursuant to article eighteen of the labor law, shall file
a quarterly combined withholding, wage reporting and unemployment insur-
ance return with the department of taxation and finance detailing the
preceding calendar quarter's withholding tax transactions, such quar-
ter's wage reporting information, such quarter's unemployment insurance
contributions, and such other related information as the commissioner of
taxation and finance or the commissioner of labor, as applicable, may
prescribe. In addition, the return covering the last calendar quarter of
each year shall also include withholding reconciliation information for
such calendar year. Such returns shall be filed no later than the last
day of the month following the last day of each calendar quarter;
provided, however, that an employer may provide the wage reporting
information covering the last calendar quarter of each year, and the
withholding reconciliation information for such year no later than
February twenty-eighth of the succeeding year.
(B) An employer shall, at the time prescribed by subparagraph (A) of
this paragraph for filing each quarterly combined withholding, wage
reporting and unemployment insurance return, pay over, in a single
remittance, the unemployment insurance contributions and aggregate with-
holding taxes required to be paid over with such return.
Notwithstanding any provision of law to the contrary, an overpayment
of unemployment insurance contributions or of aggregate withholding
taxes made by an employer with the quarterly combined withholding, wage
reporting and unemployment insurance return for a calendar quarter may
be only credited by such employer against such employer's liability for
unemployment insurance contributions or aggregate withholding taxes,
respectively.
(5) The tax commission may, if it believes such action necessary for
the protection of the revenues, require any employer to make such return
and pay to it the tax deducted and withheld at any time, or from time to
time.
A. 10030 944
(6) "Aggregate amount" as used in paragraphs one, two and three of
this subdivision means the aggregate of the aggregate amounts of New
York state personal income tax, city personal income tax on residents
and city earnings tax on nonresidents authorized to be deducted and
withheld.
(b) Deposit in trust for tax commission. Whenever any employer fails
to collect, truthfully account for, pay over the tax, or make returns of
the tax as required in this section, the tax commission may serve a
notice requiring such employer to collect the taxes which become collec-
tible after service of such notice, to deposit such taxes in a bank
approved by the tax commission, in a separate account, in trust for and
payable to the tax commission, and to keep the amount of such tax in
such account until payment over to the tax commission. Such notice
shall remain in effect until a notice of cancellation is served by the
tax commission.
§ 11-1775 Employer's liability for withheld taxes. Every employer
required to deduct and withhold tax under this chapter is hereby made
liable for such tax. For purposes of assessment and collection, any
amount required to be withheld and paid over to the tax commission, and
any additions to tax, penalties and interest with respect thereto, shall
be considered the tax of the employer. Any amount of tax actually
deducted and withheld under this chapter shall be held to be a special
fund in trust for the tax commission. No employee shall have any right
of action against his or her employer in respect to any moneys deducted
and withheld from his or her wages and paid over to the tax commission
in compliance or in intended compliance with this chapter.
§ 11-1776 Employer's failure to withhold. If an employer fails to
deduct and withhold tax as required, and thereafter the tax against
which such tax may be credited is paid, the tax so required to be
deducted and withheld shall not be collected from the employer, but the
employer shall not be relieved from liability for any penalties, inter-
est, or additions to the tax otherwise applicable in respect of such
failure to deduct and withhold.
§ 11-1777 Designation of third parties to perform acts required of
employers. In case a fiduciary, agent, or other person has the control,
receipt, custody, or disposal of, or pays the wages of an employee or
group of employees, employed by one or more employers, the tax commis-
sion, under regulations promulgated by it, is authorized to designate
such fiduciary, agent, or other person to perform such acts as are
required of employers under this chapter and as the tax commission may
specify. Except as may be otherwise prescribed by the tax commission,
all provisions of law, including penalties, applicable in respect of an
employer shall be applicable to a fiduciary, agent, or other person so
designated but, except as so provided, the employer for whom such fidu-
ciary, agent, or other person acts shall remain subject to the
provisions of law, including penalties, applicable in respect of employ-
ers.
§ 11-1778 Liability of third parties paying or providing for wages.
(a) Direct payment by third party. If a lender, surety or other person,
who is not an employer with respect to an employee or group of employ-
ees, pays wages directly to such an employee or group of employees,
employed by one or more employers, or to an agent on behalf of such
employee or employees, such lender, surety or other person shall be
liable for the amount of taxes, together with interest, required to be
deducted and withheld from such wages by the employer.
A. 10030 945
(b) Funds supplied to employer by third parties. If a lender, surety
or other person supplies funds to or for the account of an employer for
the specific purpose of paying wages of the employees of such employer,
with actual notice or knowledge that such employer does not intend to or
will not be able to make timely payment or deposit of the amounts of tax
required by this chapter to be deducted and withheld by such employer
from such wages, such lender, surety or other person shall be liable for
the amount of the taxes, together with interest, which are not paid over
to the tax commission by such employer with respect to such wages.
However, the liability of such lender, surety or other person shall be
limited to an amount equal to twenty-five percent of the amount so
supplied to or for the account of such employer for such purpose.
(c) Effect of payment. Any amounts paid to the tax commission pursuant
to this section shall be credited against the liability of the employer.
SUBCHAPTER 5
PROCEDURE AND ADMINISTRATION
§ 11-1781 Notice of deficiency. (a) General. If upon examination of a
taxpayer's return under this chapter the tax commission determines that
there is a deficiency of income tax, it may mail a notice of deficiency
to the taxpayer. If a taxpayer fails to file an income tax return
required under this chapter, the tax commission is authorized to esti-
mate the taxpayer's city taxable income and tax thereon, from any infor-
mation in its possession, and to mail a notice of deficiency to the
taxpayer. A notice of deficiency shall be mailed by certified or regis-
tered mail to the taxpayer at his or her last known address in or out of
this state. If a husband and wife are jointly liable for tax, a notice
of deficiency may be a single joint notice, except that if the tax
commission has been notified by either spouse that separate residences
have been established, then, in lieu of the single joint notice, a
duplicate original of the joint notice shall be mailed to each spouse at
his or her last known address in or out of this state. If the taxpayer
is deceased or under a legal disability, a notice of deficiency may be
mailed to his or her last known address in or out of this state, unless
the tax commission has received notice of the existence of a fiduciary
relationship with respect to the taxpayer.
(b) Notice of deficiency as assessment. After ninety days from the
mailing of a notice of deficiency, such notice shall be an assessment of
the amount of tax specified in such notice, together with the interest,
additions to tax and penalties stated in such notice, except only for
any such tax or other amounts as to which the taxpayer has within such
ninety day period filed with the tax commission a petition under section
11-1789 of this subchapter. If the notice of deficiency is addressed to
a person outside of the United States, such period shall be one hundred
fifty days instead of ninety days.
(c) Restrictions on assessment and levy. No assessment of a deficiency
in tax and no levy or proceeding in court for its collection shall be
made, begun or prosecuted, except as otherwise provided in section
11-1794 of this subchapter, until a notice of deficiency has been mailed
to the taxpayer, nor until the expiration of the time for filing a peti-
tion contesting such notice, nor, if a petition with respect to the
taxable year has been filed with the tax commission, until the decision
of the tax commission has become final. For exception in the case of
judicial review of the decision of the tax commission, see subdivision
(c) of section 11-1790 of this subchapter.
(d) Exceptions for mathematical errors. If a mathematical error
appears on a return, including an overstatement of the credit for income
A. 10030 946
tax withheld at the source, or of the amount paid as estimated income
tax, the tax commission shall notify the taxpayer that an amount of tax
in excess of that shown upon the return is due, and that such excess has
been assessed. Such notice shall not be considered as a notice of defi-
ciency for the purposes of this section, subdivision (f) of section
11-1787 of this subchapter, limiting credits or refunds after petition
to the tax commission, or subdivision (b) of section 11-1789 of this
subchapter, authorizing the filing of a petition with the tax commission
based on a notice of deficiency, nor shall such assessment or collection
be prohibited by the provisions of subdivision (c) of this section.
(e) Exceptions where federal changes, corrections or disallowances are
not reported. (1) If the taxpayer or employer fails to comply with
section 11-1759 of this chapter, instead of the mode and time of assess-
ment provided for in subdivision (b) of this section, the tax commission
may assess a deficiency based upon such federal change, correction or
disallowance by mailing to the taxpayer a notice of additional tax due
specifying the amount of the deficiency, and such deficiency, together
with the interest, additions to tax and penalties stated in such notice,
shall be deemed assessed on the date such notice is mailed unless within
thirty days after the mailing of such notice a report of the federal
change, correction or disallowance or an amended return, where such
return was required by section 11-1759 of this chapter, is filed accom-
panied by a statement showing wherein such federal determination and
such notice of additional tax due are erroneous.
(2) Such notice shall not be considered as a notice of deficiency for
the purposes of this section, subdivision (f) of section 11-1787 of this
subchapter, limiting credits or refunds after petition to the tax
commission, or subdivision (b) of section 11-1789 of this subchapter,
authorizing the filing of a petition with the tax commission based on a
notice of deficiency, nor shall such assessment or the collection there-
of be prohibited by the provisions of subdivision (c) of this section.
(3) If a husband and wife are jointly liable for tax, a notice of
additional tax due may be a single joint notice, except that if the tax
commission has been notified by either spouse that separate residences
have been established, then, in lieu of the joint notice, a duplicate
original of the joint notice shall be mailed to each spouse at his or
her last known address in or out of this state. If the taxpayer is
deceased or under a legal disability, a notice of additional tax due may
be mailed to his or her last known address in or out of this state,
unless the tax commission has received notice of the existence of a
fiduciary relationship with respect to the taxpayer.
(f) Waiver of restrictions. The taxpayer shall at any time, whether or
not a notice of deficiency has been issued, have the right to waive the
restrictions on assessment and collection of the whole or any part of
the deficiency by a signed notice in writing filed with the tax commis-
sion.
(g) Deficiency defined. For purposes of this chapter, a deficiency
means the amount of the tax imposed by this chapter, less (i) the amount
shown as the tax upon the taxpayer's return, whether the return was made
or the tax computed by such taxpayer or by the tax commission, and less
(ii) the amounts previously assessed, or collected without assessment,
as a deficiency and plus (iii) the amount of any rebates. For the
purpose of this definition, the tax imposed by this chapter and the tax
shown on the return shall both be determined without regard to payments
on account of estimated tax or the credit for withholding tax; and a
rebate means so much of an abatement, credit, refund or other repayment,
A. 10030 947
whether or not erroneous, made on the ground that the amounts entering
into the definition of a deficiency showed a balance in favor of the
taxpayer.
§ 11-1782 Assessment. (a) Assessment date. The amount of tax which a
return shows to be due, or the amount of tax which a return would have
shown to be due but for a mathematical error, shall be deemed to be
assessed on the date of filing of the return, including any amended
return showing an increase of tax. In the case of a return properly
filed without computation of tax, the tax computed by the tax commission
shall be deemed to be assessed on the date on which payment is due. If
a notice of deficiency has been mailed, the amount of the deficiency
shall be deemed to be assessed on the date specified in subdivision (b)
of section 11-1781 of this subchapter if no petition to the tax commis-
sion is filed, or if a petition is filed, then upon the date when a
decision of the tax commission establishing the amount of the deficiency
becomes final. If an amended return or report filed pursuant to section
11-1759 of this chapter concedes the accuracy of a federal change or
correction, any deficiency in tax under this chapter resulting therefrom
shall be deemed to be assessed on the date of filing such report or
amended return, and such assessment shall be timely notwithstanding
section 11-1783 of this subchapter. If a notice of additional tax due,
as prescribed in subdivision (e) of section 11-1781 of this subchapter,
has been mailed, the amount of the deficiency shall be deemed to be
assessed on the date specified in such subdivision unless within thirty
days after the mailing of such notice a report of the federal change or
correction or an amended return, where such return was required by
section 11-1759 of this chapter, is filed accompanied by a statement
showing wherein such federal determination and such notice of additional
tax due are erroneous. Any amount paid as a tax or in respect of a tax,
other than amounts withheld at the source or paid as estimated income
tax, shall be deemed to be assessed upon the date of receipt of payment,
notwithstanding any other provisions.
(b) Other assessment powers. If the mode or time for the assessment of
any tax under this chapter, including interest, additions to tax and
assessable penalties, is not otherwise provided for, the tax commission
may establish the same by regulations.
(c) Estimated income tax. No unpaid amount of estimated tax shall be
assessed.
(d) Omission of income, item of tax preference, total taxable amount
or ordinary income portion of a lump sum distribution on return. The tax
may be assessed at any time within six years after the return was filed
if: (1) an individual omits from his city adjusted gross income, the
sum of his items of tax preference, or the total taxable amount or ordi-
nary income portion of a lump sum distribution an amount properly inclu-
dible therein which is in excess of twenty-five percent of the amount of
city adjusted gross income, the sum of the items of tax preference or
the total taxable amount or ordinary income portion of a lump sum
distribution stated in the return, or (2) an estate or trust omits from
its city adjusted gross income, the sum of its items of tax preference,
or the total taxable amount or ordinary income portion of a lump sum
distribution an amount properly includible therein which is in excess of
twenty-five percent of the amount stated in the return of city adjusted
gross income, or the sum of the items of tax preference, or the total
taxable amount or ordinary income portion of a lump sum distribution,
respectively. For purposes of this paragraph, city adjusted gross income
A. 10030 948
means New York adjusted gross income as determined under paragraph four
of subsection (e) of section six hundred one of the tax law.
For purposes of this subdivision there shall not be taken into account
any amount which is omitted in the return if such amount is disclosed in
the return, or in a statement attached to the return, in a manner
adequate to apprise the commissioner of the nature and amount of the
item of income, tax preference, the total taxable amount or ordinary
income portion of a lump sum distribution.
(e) Cross reference. For assessment in case of jeopardy, see section
11-1794 of this subchapter.
§ 11-1783 Limitations on assessment. (a) General. Except as otherwise
provided in this section, any tax under this chapter shall be assessed
within three years after the return was filed, whether or not such
return was filed on or after the date prescribed.
(b) Time return deemed filed.
(1) Early return. For purposes of this section a return of income tax,
except withholding tax, filed before the last day prescribed by law or
by regulations promulgated pursuant to law for the filing thereof, shall
be deemed to be filed on such last day.
(2) Return of withholding tax. For purposes of this section, if a
return of withholding tax for any period ending with or within a calen-
dar year is filed before April fifteenth of the succeeding calendar
year, such return shall be deemed to be filed on April fifteenth of such
succeeding calendar year.
(c) Exceptions.
(1) Assessment at any time. The tax may be assessed at any time if:
(A) no return is filed,
(B) a false or fraudulent return is filed with intent to evade tax, or
(C) the taxpayer or employer fails to comply with section 11-1759 of
this chapter.
(2) Extension by agreement. Where, before the expiration of the time
prescribed in this section for the assessment of tax, both the tax
commission and the taxpayer have consented in writing to its assessment
after such time, the tax may be assessed at any time prior to the expi-
ration of the period agreed upon. The period so agreed upon may be
extended by subsequent agreements in writing made before the expiration
of the period previously agreed upon.
(3) Report of federal changes, corrections or disallowances. If the
taxpayer or employer complies with section 11-1759 of this chapter, the
assessment, if not deemed to have been made upon the filing of the
report or amended return, may be made at any time within two years after
such report or amended return was filed. The amount of such assessment
of tax shall not exceed the amount of the increase in city tax attribut-
able to such federal change or correction. The provisions of this para-
graph shall not affect the time within which or the amount for which an
assessment may otherwise be made.
(4) Deficiency attributable to net operating loss carryback. If a
deficiency is attributable to the application to the taxpayer of a net
operating loss carryback, it may be assessed at any time that a defi-
ciency for the taxable year of the loss may be assessed.
(5) Recovery of erroneous refund. An erroneous refund shall be consid-
ered an underpayment of tax on the date made, and an assessment of a
deficiency arising out of an erroneous refund may be made at any time
within two years from the making of the refund, except that the assess-
ment may be made within five years from the making of the refund if it
A. 10030 949
appears that any part of the refund was induced by fraud or misrepresen-
tation of a material fact.
(6) Request for prompt assessment. If a return is required for a dece-
dent or for a decedent's estate during the period of administration, the
tax shall be assessed within eighteen months after written request
therefor, made after the return is filed, by the executor, administrator
or other person representing the estate of such decedent, but not more
than three years after the return was filed, except as otherwise
provided in this subdivision and subdivision (d) of this section.
(7) Report on use of certain property. Under the circumstances
described in paragraph two of subdivision (g) of section 11-1712 of this
chapter, the tax may be assessed within three years after the filing of
a return reporting that property has been used for purposes other than
research and development to a greater extent than originally reported.
(8) Report concerning waste treatment facility, air pollution control
facility or eligible business facility. Under the circumstances
described in paragraph three of subdivision (h) of section 11-1712 of
this chapter, the tax may be assessed within three years after filing of
the return containing the information required by such paragraph, or, if
a certificate of compliance in respect to an air pollution control
facility shall be revoked, within three years after the tax commission
shall receive notice of such revocation from the taxpayer or as required
by section 19-0309 of the environmental conservation law, whichever
notice is received earlier.
(9) Except as otherwise provided in paragraph three of this subdivi-
sion, or as otherwise provided in this section where a longer period of
time may apply, if a taxpayer files an amended return, an assessment of
tax, if not deemed to have been made upon the filing of the amended
return, including recovery of a previously paid refund, attributable to
a change or correction on the amended return from a prior return may be
made at any time within one year after such amended return is filed.
(d) Omission of income, total taxable amount or ordinary income
portion of a lump sum distribution on return. The tax may be assessed at
any time within six years after the return was filed if:
(1) an individual omits from his city adjusted gross income the total
taxable amount or ordinary income portion of a lump sum distribution an
amount properly includible therein which is in excess of twenty-five
percent of the amount of city adjusted gross income or the total taxable
amount or ordinary income portion of a lump sum distribution stated in
the return, or
(2) an estate or trust omits from its city adjusted gross income, or
the total taxable amount or ordinary income portion of a lump sum
distribution an amount properly includible therein which is in excess of
twenty-five percent of the amount stated in the return of city adjusted
gross income, or the total taxable amount or ordinary income portion of
a lump sum distribution, respectively. For purposes of this paragraph,
city adjusted gross income means New York adjusted gross income as
determined under paragraph four of subsection (e) of section six hundred
one of the tax law.
For purposes of this subdivision there shall not be taken into account
any amount which is omitted in the return if such amount is disclosed in
the return, or in a statement attached to the return, in a manner
adequate to apprise the commissioner of the nature and amount of the
item of income, the total taxable amount or ordinary income portion of a
lump sum distribution.
A. 10030 950
(e) Suspension of running of period of limitation. The running of the
period of limitations on assessment or collection of tax or other
amount, or of a transferee's liability, shall, after the mailing of a
notice of deficiency, be suspended for the period during which the tax
commission is prohibited under subdivision (c) of section 11-1781 of
this subchapter from making the assessment or from collecting by levy.
§ 11-1784 Interest on underpayment. (a) General. If any amount of
income tax is not paid on or before the last date prescribed in this
chapter for payment, interest on such amount at the underpayment rate
set by the commissioner of taxation and finance pursuant to section
11-1797 of this subchapter, or if no rate is set, at the rate of seven
and one-half percent per annum shall be paid for the period from such
last date to the date paid, whether or not any extension of time for
payment was granted. Interest under this subdivision shall not be paid
if the amount thereof is less than one dollar. If the time for filing of
a return of tax withheld by an employer is extended, the employer shall
pay interest for the period for which the extension is granted and may
not charge such interest to the employee.
(b) Exception as to estimated tax. This section shall not apply to any
failure to pay estimated tax.
(c) Exception for mathematical error. No interest shall be imposed on
any underpayment of tax due solely to mathematical error if the taxpayer
files a return within the time prescribed in this chapter, including any
extension of time, and pays the amount of underpayment within three
months after the due date of such return, as it may be extended.
(d) Suspension of interest on deficiencies. If a waiver of
restrictions on assessment of a deficiency has been filed by the taxpay-
er, and if notice and demand by the tax commission for payment of such
deficiency is not made within thirty days after the filing of such waiv-
er, interest shall not be imposed on such deficiency for the period
beginning immediately after such thirtieth day and ending with the date
of notice and demand.
(e) Tax reduced by carryback. If the amount of tax for any taxable
year is reduced by reason of a carryback of a net operating loss, such
reduction in tax shall not affect the computation of interest under this
section for the period ending with the filing date for the taxable year
in which the net operating loss arises. Such filing date shall be deter-
mined without regard to extensions of time to file.
(f) Interest treated as tax. Interest under this section shall be paid
upon notice and demand and shall be assessed, collected and paid in the
same manner as income tax. Any reference in this chapter to the tax
imposed by this chapter shall be deemed also to refer to interest
imposed by this section on such tax.
(g) Interest on penalties or additions to tax. Interest shall be
imposed under subdivision (a) of this section in respect of any assessa-
ble penalty or addition to tax only if such assessable penalty or addi-
tion to tax is not paid within twenty-one calendar days from the date of
the notice and demand therefor under subdivision (b) of section 11-1792
of this subchapter, ten business days if the amount for which such
notice and demand is made equals or exceeds one hundred thousand
dollars, and in such case interest shall be imposed only for the period
from such date of the notice and demand to the date of payment.
(h) Payment within specified period after notice and demand. If notice
and demand is made for payment of any amount under subdivision (b) of
section 11-1792 of this subchapter, and if such amount is paid within
twenty-one calendar days, ten business days if the amount for which such
A. 10030 951
notice and demand is made equals or exceeds one hundred thousand
dollars, after the date of such notice and demand, interest under this
section on the amount so paid shall not be imposed for the period after
the date of such notice and demand.
(i) Limitation on assessment and collection. Interest prescribed under
this section may be assessed and collected, at any time during the peri-
od within which the tax or other amount to which such interest relates
may be assessed and collected, respectively.
(j) Interest on erroneous refund. Any portion of tax or other amount
which has been erroneously refunded, and which is recoverable by the
commissioner of taxation and finance, shall bear interest at the under-
payment rate set by such commissioner pursuant to section 11-1797 of
this subchapter, or if no rate is set, at the rate of seven and one-half
percent per annum from the date of the payment of the refund, but only
if it appears that any part of the refund was induced by fraud or a
misrepresentation of a material fact.
(k) Satisfaction by credits. If any portion of a tax is satisfied by
credit of an overpayment, then no interest shall be imposed under this
section on the portion of the tax so satisfied for any period during
which, if the credit had not been made, interest would have been allow-
able with respect to such overpayment.
§ 11-1785 Additions to tax and civil penalties. (a) (1) Failure to
file tax return. (A) In case of failure to file a tax return under this
chapter on or before the prescribed date, determined with regard to any
extension of time for filing, unless it is shown that such failure is
due to reasonable cause and not due to willful neglect, there shall be
added to the amount required to be shown as tax on such return five
percent of the amount of such tax if the failure is for not more than
one month, with an additional five percent for each additional month or
fraction thereof during which such failure continues, not exceeding
twenty-five percent in the aggregate.
(B) In the case of a failure to file a return of tax within sixty days
of the date prescribed for filing of such return, determined with regard
to any extension of time for filing, unless it is shown that such fail-
ure is due to reasonable cause and not due to willful neglect, the addi-
tion to tax hereunder shall not be less than the lesser of one hundred
dollars or one hundred percent of the amount required to be shown as tax
on such return.
(C) For purposes of this paragraph, the amount of tax required to be
shown on the return shall be reduced by the amount of any part of the
tax which is paid on or before the date prescribed for payment of the
tax and by the amount of any credit against the tax which may be claimed
upon the return.
(2) Failure to pay tax shown on return. In case of failure to pay the
amounts shown as tax on any return required to be filed under this chap-
ter on or before the prescribed date, determined with regard to any
extension of time for payment, unless it is shown that such failure is
due to reasonable cause and not due to willful neglect, there shall be
added to the amount shown as tax on such return one-half of one percent
of the amount of such tax if the failure is not for more than one month,
with an additional one-half of one percent for each additional month or
fraction thereof during which such failure continues, not exceeding
twenty-five percent in the aggregate. For the purpose of computing the
addition for any month, the amount of tax shown on the return shall be
reduced by the amount of any part of the tax which is paid on or before
the beginning of such month and by the amount of any credit against the
A. 10030 952
tax which may be claimed upon the return. If the amount of tax required
to be shown on a return is less than the amount shown as tax on such
return, this paragraph shall be applied by substituting such lower
amount.
(3) Failure to pay tax required to be shown on return. In case of
failure to pay any amount in respect of any tax required to be shown on
a return required to be filed under this chapter which is not so shown,
including an assessment made pursuant to subdivision (a) of section
11-1782 of this subchapter, within twenty-one calendar days of the date
of a notice and demand therefor, ten business days if the amount for
which such notice and demand is made equals or exceeds one hundred thou-
sand dollars, unless it is shown that such failure is due to reasonable
cause and not due to willful neglect, there shall be added to the amount
of tax stated in such notice and demand one-half of one percent of such
tax if the failure is not for more than one month, with an additional
one-half of one percent for each additional month or fraction thereof
during which such failure continues, not exceeding twenty-five percent
in the aggregate. For the purpose of computing the addition for any
month, the amount of tax stated in the notice and demand shall be
reduced by the amount of any part of the tax which is paid before the
beginning of such month.
(4) Limitations on additions. (A) With respect to any return, the
amount of the addition under paragraph one of this subdivision shall be
reduced by the amount of the addition under paragraph two of this subdi-
vision for any month to which an addition applies under both paragraphs
one and two of this subdivision. In any case described in subparagraph
(B) of such paragraph one of this subdivision, the amount of the addi-
tion under such paragraph one shall not be reduced below the amount
provided in such subparagraph.
(B) With respect to any return, the maximum amount of the addition
permitted under paragraph three of this subdivision shall be reduced by
the amount of the addition under paragraph one of this subdivision,
determined without regard to subparagraph (B) of such paragraph, which
is attributable to the tax for which the notice and demand is made and
which is not paid within ten days of such notice and demand.
(b) Deficiency due to negligence. (1) If any part of a deficiency is
due to negligence or intentional disregard of this chapter or rules or
regulations established pursuant to such chapter, but without intent to
defraud, there shall be added to the tax an amount equal to five percent
of the deficiency.
(2) There shall be added to the tax, in addition to the amount deter-
mined under paragraph one of this subdivision, an amount equal to fifty
percent of the interest payable under section 11-1784 of this subchapter
with respect to the portion of the underpayment described in such para-
graph one which is attributable to the negligence or intentional disre-
gard referred to in such paragraph, for the period beginning on the last
date prescribed by law for payment of such underpayment, determined
without regard to any extension, and ending on the date of the assess-
ment of the tax, or, if earlier, the date of the payment of the tax.
(3) If any payment is shown on a return made by a payor with respect
to dividends, patronage dividends and interest under subsection (a) of
section six thousand forty-two, subsection (a) of section six thousand
forty-four or subsection (a) of section six thousand forty-nine of the
internal revenue code, respectively, and the payee fails to include any
portion of such payment in city adjusted gross income, any portion of an
underpayment attributable to such failure shall be treated, for purposes
A. 10030 953
of this subdivision, as due to negligence in the absence of clear and
convincing evidence to the contrary. If any penalty is imposed under
this subdivision by reason of this paragraph, the amount of the penalty
imposed by paragraph one of this subdivision shall be five percent of
the portion of the underpayment which is attributable to the failure
described in this paragraph.
(c) Failure by individual to pay estimated income tax. (1) Addition
to the tax. Except as otherwise provided in this subdivision and subdi-
vision (d) of this section, in the case of any underpayment of estimated
tax by an individual, there shall be added to the tax under this chapter
for the taxable year an amount determined by applying the underpayment
rate established under section 11-1797 of this subchapter, or if no rate
is set, at the rate of seven and one-half percent per annum, to the
amount of the underpayment for the period of the underpayment. Such
period shall run from the due date for the required installment to the
earlier of the fifteenth day of the fourth month following the close of
the taxable year or, with respect to any portion of the underpayment,
the date on which such portion is paid. For purposes of determining such
date, a payment of estimated tax shall be credited against unpaid
required installments in the order in which such installments are
required to be paid. There shall be four required installments for each
taxable year, due on April fifteenth, June fifteenth and September
fifteenth of such taxable year and on January fifteenth of the following
taxable year.
(2) Amount of underpayment. For purposes of paragraph one of this
subdivision, the amount of the underpayment shall be the excess of the
required installment over the amount, if any, of the installment paid on
or before the due date for the installment.
(3) Required installment. (A) Except as provided in paragraph four of
this subdivision, the amount of any required installment shall be twen-
ty-five percent of the required annual payment.
(B) The required annual payment is the lesser of
(i) ninety percent of the tax shown on the return for the taxable
year, or, if no return is filed, ninety percent of the tax for such
year, or
(ii) one hundred percent of the tax shown on the return of the indi-
vidual for the preceding taxable year. Provided, however, that the tax
shown on such return for taxable years beginning in two thousand eight
shall be calculated as if paragraph three of subdivision (f) of section
11-1715 of this chapter was in effect for taxable years beginning in two
thousand eight. Provided, however, that the tax shown on such return for
taxable years beginning in two thousand nine shall be calculated as if
paragraph two of subdivision (g) of section 11-1715 of this chapter was
in effect for taxable years beginning in two thousand nine.
Clause (ii) of this subparagraph shall not apply if the preceding
taxable year was not a taxable year of twelve months or if the individ-
ual did not file a return for such preceding taxable year.
(C) Limitation on use of preceding year's tax.
(i) General. If the city adjusted gross income shown on the return of
the individual for the preceding taxable year exceeds one hundred fifty
thousand dollars, clause (ii) of subparagraph (B) of this paragraph
shall be applied by substituting "one hundred ten percent" for "one
hundred percent".
(ii) Separate returns. In the case of a husband and wife who file
separate returns pursuant to subdivision (b) of section 11-1751 of this
chapter for the taxable year for which the amount of the installment is
A. 10030 954
being determined, clause (i) of this subparagraph shall be applied by
substituting "seventy-five thousand dollars" for "one hundred fifty
thousand dollars".
(4) Annualized income installment. (A) In general. In the case of
any required installment, if the individual establishes that the annual-
ized income installment determined under subparagraph (B) of this para-
graph is less than the amount determined under paragraph three of this
subdivision, the annualized income installment shall be the required
installment. Any reduction in a required installment resulting from the
application of this subparagraph shall be recaptured by increasing the
amount of the next required installment determined under paragraph three
of this subdivision by the amount of such reduction, and by increasing
successive required installments as necessary to effect full recapture.
(B) Determination of annualized income installment. In the case of
any required installment, the annualized income installment is the
excess, if any, of an amount equal to the applicable percentage of the
tax for the taxable year computed by placing on an annualized basis the
taxable income for months in the taxable year ending before the due date
for the installment, over the aggregate amount of any prior required
installments for the taxable year. The applicable percentage of the tax
shall be twenty-two and one-half percent in the case of the first
installment, forty-five percent in the case of the second installment,
sixty-seven and one-half percent in the case of the third installment
and ninety percent in the case of the fourth installment, and shall be
computed without regard to any increase in the rates applicable to the
taxable year unless such increase was enacted at least thirty days prior
to the due date of the installment.
(5) Definitions and special rules. (A) Definition of the term tax
and application of credits against tax. For purposes of this subdivi-
sion and subdivision (d) of this section, the term "tax" means the tax
imposed under this chapter minus the credits against tax allowed under
this chapter, other than the credit under section 11-1773 of this chap-
ter, relating to tax withheld on wages. The credit allowed under
section 11-1773 of this chapter for the taxable year shall be deemed a
payment of estimated tax, and an equal part of such amount shall be
deemed paid on each installment due date for such taxable year, unless
the taxpayer establishes the dates on which all amounts were actually
withheld, in which case the amounts so withheld shall be deemed payments
of estimated tax on the dates on which such amounts were actually with-
held.
(B) Special rule where return filed on or before January thirty-first.
If, on or before January thirty-first of the following taxable year,
the taxpayer files a return for the taxable year and pays in full the
amount computed on the return as payable, then no addition to tax shall
be imposed under paragraph one of this subdivision with respect to any
underpayment of the fourth required installment for the taxable year.
(C) Special rules for farmers and fishermen. For purposes of this
subdivision, if an individual is a farmer or fisherman for any taxable
year there shall be only one required installment for the taxable year,
due on January fifteenth of the following taxable year in an amount
equal to the required annual payment determined under paragraph three of
this subdivision by substituting sixty-six and two-thirds percent for
ninety percent and without regard to subparagraph (C) of paragraph three
of this subdivision. Subparagraph (B) of this paragraph shall be applied
by substituting March first for January thirty-first and by treating the
required installment under this subparagraph as the fourth required
A. 10030 955
installment. An individual is a farmer or fisherman for any taxable year
if the individual's federal gross income from farming or fishing,
including oyster farming, for the taxable year is at least two-thirds of
the total federal gross income from all sources for the taxable year or
if such individual's federal gross income from farming or fishing,
including oyster farming, shown on the return of the individual for the
preceding taxable year is at least two-thirds of the total federal gross
income from all sources shown on such return.
(D) Fiscal years. In applying this subdivision to a taxable year
beginning on any date other than January first, there shall be substi-
tuted, for the months specified in this subdivision, the months which
correspond thereto.
(E) Short taxable year. This subdivision shall be applied to taxable
years of less than twelve months in accordance with regulations
prescribed by the tax commission.
(F) Joint estimated tax of husband and wife. A husband and wife may
make the required annual payment determined under paragraph three of
this subdivision as if they were one taxpayer, in which case the liabil-
ity under paragraph one of this subdivision with respect to the esti-
mated tax shall be joint and several. No such joint payment may be made
if husband and wife are separated under a decree of divorce or separate
maintenance, or if they have different taxable years. If a joint
payment is made but husband and wife determine their taxes under this
chapter separately, the estimated tax for such year may be treated as
the estimated tax of either husband or wife, or may be divided between
them, as they may elect.
(6) Trusts and certain estates. (A) General. This subdivision shall
apply to any trust or estate except as provided in subparagraphs (B) and
(C) of this paragraph.
(B) Exception for estates and certain trusts. This subdivision shall
not apply with respect to any taxable year ending before the date two
years after the date of the decedent's death to (i) the estate of such
decedent or (ii) any trust all of which was treated, under subpart E of
part I of subchapter J of chapter one of the internal revenue code, as
owned by the decedent and to which the residue of the decedent's estate
will pass under his will, or, if no will is admitted to probate, which
is the trust primarily responsible for paying debts, taxes and expenses
of administration.
(C) Special rule for annualizations. In the case of any estate or
trust, subparagraph (B) of paragraph four of this subdivision shall be
applied by substituting "ending before the date one month before the due
date for the installment" for "ending before the due date for the
installment".
(D) In the case of a trust, the trustee may elect to treat any portion
of a payment of estimated tax made by such trust for any taxable year of
the trust as a payment made by a beneficiary of such trust. Any amount
so treated shall be treated as paid or credited to the beneficiary on
the last day of such taxable year, and for purposes of this subdivision,
the amount so treated shall not be treated as a payment of estimated tax
made by the trust, but shall be treated as a payment of estimated tax
made by such beneficiary on the January fifteenth following the end of
the trust's taxable year.
(E) An election under subparagraph (D) of this paragraph shall be made
on or before the sixty-fifth day after the close of the taxable year and
in such manner as the commissioner of taxation and finance may
prescribe.
A. 10030 956
(F) Extension to last year of estate. In the case of a taxable year
reasonably expected to be the last taxable year of an estate, any refer-
ence in subparagraph (D) of this paragraph to a trust shall be treated
as including a reference to an estate, and the fiduciary of the estate
shall be treated as the trustee.
(d) Exceptions to addition to tax for failure to pay estimated income
tax.
(1) Where tax is small amount. No addition to tax shall be imposed
under subdivision (c) of this section for any taxable year if the tax
shown on the return for such taxable year, or, if no return is filed,
the tax, reduced by the credit allowable under section 11-1773 of this
chapter, is less than one hundred dollars.
(2) Where no tax liability for preceding taxable year. No addition to
tax shall be imposed under subdivision (c) of this section for any taxa-
ble year if the preceding taxable year was a taxable year of twelve
months, the individual did not have any liability for tax under this
chapter for the preceding taxable year and throughout the preceding
taxable year the individual was a resident of this city or a nonresident
who had city adjusted gross income.
(3) Installment due on or after individual's death. No addition to
tax shall be imposed under subdivision (c) of this section with respect
to any installment due on or after the individual's death.
(4) Waiver in certain cases. (A) In general. No addition to tax
shall be imposed under subdivision (c) of this section with respect to
any underpayment to the extent the tax commission determines that by
reason of casualty, disaster or other unusual circumstances the imposi-
tion of such addition to tax would be against equity and good
conscience.
(B) Newly retired or disabled individuals. No addition to tax shall
be imposed under subdivision (c) of this section with respect to any
underpayment if the tax commission determines that in the taxable year
for which estimated payments were required to be made or in the taxable
year preceding such taxable year the taxpayer retired after having
attained age sixty-two or became disabled, and that such underpayment
was due to reasonable cause and not to willful neglect.
(e) Deficiency due to fraud. (1) If any part of a deficiency is due
to fraud, there shall be added to the tax an amount equal to fifty
percent of the deficiency.
(2) There shall be added to the tax, in addition to the amount deter-
mined under paragraph one of this subdivision, an amount equal to fifty
percent of the interest payable under section 11-1784 of this subchapter
with respect to the portion of the underpayment described in such para-
graph one which is attributable to fraud, for the period beginning on
the last day prescribed by law for payment of such underpayment, deter-
mined without regard to any extension, and ending on the date of the
assessment of the tax, or, if earlier, the date of the payment of the
tax.
(3) The addition to tax under this subdivision shall be in lieu of any
other addition to tax imposed by subdivision (a) or (b) of this section.
(4) In the case of a joint return under section 11-1751 of this chap-
ter, this subdivision shall not apply with respect to the tax of a
spouse unless some part of the underpayment is due to the fraud of such
spouse.
(f) Non-willful failure to pay withholding tax. If any employer,
without intent to evade or defeat any tax imposed by this chapter or the
payment thereof, shall fail to make a return and pay a tax withheld by
A. 10030 957
him or her at the time required by or under the provisions of section
11-1774 of this chapter, such employer shall be liable for such tax and
shall pay the same together with interest thereon and the addition to
tax provided in subdivision (a) of this section, and such interest and
addition to tax shall not be charged to or collected from the employee
by the employer. The tax commission shall have the same rights and
powers for the collection of such tax, interest and addition to tax
against such employer as are now prescribed by this chapter for the
collection of tax against an individual taxpayer.
(g) Willful failure to collect and pay over tax. Any person required
to collect, truthfully account for, and pay over the tax imposed by this
chapter who willfully fails to collect such tax or truthfully account
for and pay over such tax or willfully attempts in any manner to evade
or defeat the tax or the payment thereof, shall, in addition to other
penalties provided by law, be liable to a penalty equal to the total
amount of the tax evaded, or not collected, or not accounted for and
paid over. No addition to tax under subdivision (b) or (e) of this
section shall be imposed for any offense to which this subdivision
applies. The tax commission shall have the power, in its discretion, to
waive, reduce or compromise any penalty under this subdivision.
(h) Failure to file certain information returns. (1) Except as other-
wise provided in this paragraph, in case of each failure to file a
statement of a payment to another person, required under authority of
subdivision (d) of section 11-1758 of this chapter, relating to informa-
tion at source, including the duplicate statement of tax withheld on
wages, on the date prescribed therefor, determined with regard to any
extension of time for filing, unless it is shown that such failure is
due to reasonable cause and not to willful neglect, there shall, upon
notice and demand by the tax commission and in the same manner as tax,
be paid by the person so failing to file the statement, a penalty of
fifty dollars for each statement not so filed, but the total amount
imposed on the delinquent person for all such failures during any calen-
dar year shall not exceed ten thousand dollars.
(2) If any partnership or S corporation required to file a return or
report under subdivision (c) of section 11-1758 of this chapter or under
section 11-1759 of this chapter for any taxable year fails to file such
return or report at the time prescribed therefor, determined with regard
to any extension of time for filing, or files a return or report which
fails to show the information required under such subdivision (c) or
section 11-1759 of this chapter, unless it is shown that such failure is
due to reasonable cause and not due to willful neglect, there shall,
upon notice and demand by the commissioner and in the same manner as
tax, be paid by the partnership or S corporation a penalty for each
month, or fraction thereof, during which such failure continues, but not
to exceed five months. The amount of such penalty for any month is the
product of fifty dollars, multiplied by the number of partners in the
partnership or shareholders in the S corporation during any part of the
taxable year who were subject to tax under this chapter during any part
of such taxable year.
(i) Additional penalty. Any person who with fraudulent intent shall
fail to pay, or to deduct or withhold and pay, any tax, or to make,
render, sign or certify any return, or to supply any information within
the time required by or under this chapter, shall be liable to penalty
of not more than one thousand dollars, in addition to any other amounts
required under this chapter, to be imposed, assessed and collected by
the tax commission. The tax commission shall have the power, in its
A. 10030 958
discretion, to waive, reduce or compromise any penalty under this subdi-
vision.
(j) Fraudulent statement or failure to furnish statement to employee.
In addition to any criminal penalties provided by law, any person
required under the provisions of section 11-1772 of this chapter to
furnish a statement to an employee, who willfully furnishes a false or
fraudulent statement, or who willfully fails to furnish a statement in
the manner, at the time, and showing the information required under
section 11-1772 of this chapter, or regulations prescribed thereunder,
shall for each such failure be subject to a penalty under this chapter
of fifty dollars.
(k) Failure to supply identifying numbers. If any person who is
required by regulations prescribed under subdivision (b) of section
11-1758 of this chapter:
(1) to include his or her identifying number in any return, state-
ment, or other document;
(2) to furnish his or her identifying number to another person; or
(3) to include in any return, statement or other document made with
respect to another person the identifying number of such other person,
fails to comply with such requirement at the time prescribed by such
regulations, such person shall, unless it is shown that such failure is
due to reasonable cause and not due to willful neglect, pay a penalty of
five dollars for each such failure described in paragraph one of this
subdivision and fifty dollars for each such failure described in para-
graph two of this subdivision, and this paragraph, except that the total
amount imposed on such person for all such failures during any calendar
year shall not exceed ten thousand dollars; except that for failure to
include his or her own identification number in any return, statement or
other document, such penalty shall not be imposed unless such person
shall have failed to supply his or her identification number to the tax
commission within thirty days after demand therefor.
(1) Additions treated as tax. The additions to tax and penalties
provided by this section shall be paid upon notice and demand and shall
be assessed, collected and paid in the same manner as taxes, and any
reference in this chapter to income tax or tax imposed by this chapter,
shall be deemed also to refer to the additions to tax and penalties
provided by this section. For purposes of section 11-1781 of this
subchapter, this subdivision shall not apply to:
(1) any addition to tax under subdivision (a) of this section except
as to that portion attributable to a deficiency;
(2) any addition to tax under subdivision (c) of this section;
(3) any penalty under subdivision (h) of this section and any addi-
tional penalty under subdivision (i) of this section; and
(4) any penalties under subdivisions (j), (k), (q), (r), (s) and (t)
of this section.
(m) Determination of deficiency. For purposes of subdivisions (b) and
(e) of this section, the amount shown as the tax by the taxpayer upon
his or her return shall be taken into account in determining the amount
of the deficiency only if such return was filed on or before the last
day prescribed for the filing of such return, determined with regard to
any extension of time for such filing.
(n) Person defined. For purposes of subdivisions (g), (i), (o), (q)
and (r) of this section, the term person includes an individual, corpo-
ration, partnership or limited liability company or an officer or
employee of any corporation, including a dissolved corporation, or a
member or employee of any partnership, or a member, manager or employee
A. 10030 959
of a limited liability company, who as such officer, employee, manager
or member is under a duty to perform the act in respect of which the
violation occurs.
(o) Failure to make deposits of taxes. In case of failure by any
person required by this chapter, or by regulations of the tax commission
under this chapter, to deposit on the date prescribed therefor any
amount of tax imposed by this chapter in a depository authorized pursu-
ant to subdivision (a) of section 11-1792 of this subchapter to receive
such deposits, unless it is shown that such failure is due to reasonable
cause and not due to willful neglect, there shall be imposed on such
person a penalty of five percent of the amount of the underpayment. For
purposes of this subdivision the term "underpayment" means the excess of
the amount of the tax required to be so deposited over the amount, if
any, thereof, deposited on or before the date prescribed therefor.
(p) Substantial understatement of liability. If there is a substantial
understatement of income tax for any taxable year, there shall be added
to the tax an amount equal to ten percent of the amount of any underpay-
ment attributable to such understatement. For purposes of this subdivi-
sion, there is a substantial understatement of income tax for any taxa-
ble year if the amount of the understatement for the taxable year
exceeds the greater of ten percent of the tax required to be shown on
the return for the taxable year, or two thousand dollars. For purposes
of this subdivision, the term "understatement" means the excess of the
amount of the tax required to be shown on the return for the taxable
year, over the amount of the tax imposed which is shown on the return
reduced by any rebate, within the meaning of subdivision (g) of section
11-1781 of this subchapter. The amount of such understatement shall be
reduced by that portion of the understatement which is attributable to
the tax treatment of any item by the taxpayer if there is or was
substantial authority for such treatment, or any item with respect to
which the relevant facts affecting the item's tax treatment are
adequately disclosed in the return or in a statement attached to the
return. The tax commission may waive all or any part of the addition to
tax provided by this subdivision on a showing by the taxpayer that there
was reasonable cause for the understatement, or part thereof, and that
the taxpayer acted in good faith.
(q) Frivolous tax returns. If any individual files what purports to
be a return of any tax imposed by this chapter but which does not
contain information on which the substantial correctness of the self-as-
sessment may be judged, or contains information that on its face indi-
cates that the self-assessment is substantially incorrect; and such
conduct is due to a position which is frivolous, or an intent, which
appears on the purported return, to delay or impede the administration
of this chapter, then such individual shall pay a penalty not exceeding
five hundred dollars. This penalty shall be in addition to any other
penalty provided by law.
(r) Aiding or assisting in the giving of fraudulent returns, reports,
statements or other documents. (1) Any person who, with the intent that
tax be evaded, shall, for a fee or other compensation or as an incident
to the performance of other services for which such person receives
compensation, aid or assist in, or procure, counsel, or advise the prep-
aration or presentation under, or in connection with any matter arising
under this chapter of any return, report, declaration, statement or
other document which is fraudulent or false as to any material matter,
or supply any false or fraudulent information, whether or not such
falsity of fraud is with the knowledge or consent of the person author-
A. 10030 960
ized or required to present such return, report, declaration, statement
or other document shall pay a penalty not exceeding one thousand
dollars.
(2) For purposes of paragraph one of this subdivision, the term
"procures" includes ordering, or otherwise causing, a subordinate to do
an act, and knowing of, and not attempting to prevent, participation by
a subordinate in an act. The term "subordinate" means any other person,
whether or not a director, officer, employee, or agent of the taxpayer
involved, over whose activities the person has direction, supervision or
control.
(3) For purposes of paragraph one of this subdivision, a person
furnishing typing, reproducing, or other mechanical assistance with
respect to a document shall not be treated as having aided or assisted
in the preparation of such document by reason of such assistance.
(4) The penalty imposed by this subdivision shall be in addition to
any other penalty provided by law.
(s) False information with respect to withholding. In addition to any
criminal penalty provided by law, if any individual makes a statement
under section 11-1771 of this chapter which results in a decrease in the
amounts deducted and withheld under this chapter, and as of the time
such statement was made, there was no reasonable basis for such state-
ment, such individual shall pay a penalty of five hundred dollars for
such statement. The tax commission shall waive the penalty imposed
under this subdivision if the taxes imposed with respect to the individ-
ual under this chapter for the taxable year are equal to or less than
the sum of the credits against such taxes allowed by this chapter, and
the payments of estimated tax which are considered payments on account
of such taxes.
(t) Failure of tax return preparer to conform to certain requirements.
(1) Failure to sign return or claim for refund. Any individual who is a
tax return preparer with respect to any return or claim for refund, who
is required pursuant to paragraph one of subdivision (g) of section
11-1758 of this chapter to sign such return or claim for refund, and who
fails to comply with such requirement with respect to such return or
claim for refund, shall be subject to a penalty of fifty dollars for
each such failure, unless it is shown that such failure is due to
reasonable cause and not due to willful neglect. The maximum penalty
imposed under this paragraph on any person with respect to returns or
claims for refund filed during any calendar year shall not exceed twen-
ty-five thousand dollars.
(2) Failure to furnish identifying number. If any identifying number
required to be included on any return or claim for refund pursuant to
paragraph two of subdivision (g) of section 11-1758 of this chapter is
not so included, the person who is the tax return preparer with respect
to such return or claim for refund shall be subject to a penalty of
fifty dollars with respect to such return or claim for refund unless it
is shown that such failure is due to reasonable cause and not willful
neglect. For purposes of this paragraph, where an employer and one or
more employees of such employer are tax return preparers with respect to
the same return or claim for refund or where a partnership and one or
more partners in such partnership are tax return preparers with respect
to the same return or claim for refund, such employer or such partner-
ship shall be deemed to be the sole tax return preparer with respect to
such return or claim for refund. The maximum penalty imposed under this
paragraph on any person with respect to returns or claims for refund
A. 10030 961
filed during any calendar year shall not exceed twenty-five thousand
dollars.
(3) Failure to furnish copy to taxpayer. Any person who is a tax
return preparer with respect to any return or claim for refund, who is
required under paragraph three of subdivision (g) of section 11-1758 of
this chapter to furnish a copy of such return or claim for refund to the
taxpayer, and who fails to comply with such provision with respect to
such return or claim for refund shall be subject to a penalty of fifty
dollars for each such failure, unless it is shown that such failure is
due to reasonable cause and not due to willful neglect. The maximum
penalty imposed under this paragraph on any person with respect to
returns or claims for refund filed during any calendar year shall not
exceed twenty-five thousand dollars.
(4) Failure to retain copy or list. Any person who is a tax return
preparer with respect to any return or claim for refund, who is required
under paragraph four of subdivision (g) of section 11-1758 of this chap-
ter to: (i) retain a copy of such return or claim for refund or retain
on a list the name and taxpayer identifying number of the taxpayer for
whom such return or claim for refund was prepared and (ii) make such
copy or list available for inspection upon request by the commissioner
of taxation and finance, and who fails to comply with the retention
requirement or who complies with the retention requirement but fails to
comply with such request by the commissioner, shall be subject to a
penalty of fifty dollars for each such failure, unless it is shown that
such failure is due to reasonable cause and not due to willful neglect.
The maximum penalty imposed under this paragraph on any person with
respect to any calendar year shall not exceed twenty-five thousand
dollars.
(5) Failure to electronically file. If a tax return preparer is
required to file returns electronically pursuant to paragraph ten of
subdivision (g) of section 11-1758 of this chapter, and such preparer
fails to file one or more of such returns electronically, then such
preparer shall be subject to a penalty of fifty dollars for each such
failure to electronically file a return, unless it is shown that such
failure is due to reasonable cause and not due to willful neglect. For
purposes of this paragraph, reasonable cause shall include, but not be
limited to, a taxpayer's election not to electronically file his or her
return.
§ 11-1786 Overpayment. (a) General. The state commissioner of taxa-
tion and finance, within the applicable period of limitations, may cred-
it an overpayment of income tax and interest on such overpayment against
any liability in respect of any tax imposed by this chapter or by chap-
ter nineteen of this title on the person who made the overpayment or any
other tax imposed on such person pursuant to the authority of the tax
law or any other law if such tax is administered by the state commis-
sioner of taxation and finance, against any liability in respect of any
tax imposed on such person by the tax law and, as provided in sections
one hundred seventy-one-c, one hundred seventy-one-d, one hundred seven-
ty-one-e, one hundred seventy-one-f and one hundred seventy-one-l of the
tax law, against past-due support, against a past-due legally enforcea-
ble debt, against a city of New York tax warrant judgment debt and
against the amount of a default in repayment of a guaranteed student,
state university or city university loan. The balance shall be refunded
by the state comptroller out of the proceeds of the tax retained by him
or her for such general purpose. Any refund under this section shall be
made only upon the filing of a return and upon a certificate of the
A. 10030 962
state commissioner of taxation and finance approved by the state comp-
troller. The state comptroller, as a condition precedent to the approval
of such a certificate, may examine into the facts as disclosed by the
return of the person who made the overpayment and other information and
data available in the files of the state commissioner of taxation and
finance.
(b) Excessive withholding. If the amount allowable as a credit for
tax withheld from the taxpayer exceeds his or her tax to which the cred-
it relates, the excess shall be considered an overpayment.
(c) Overpayment by employer. If there has been an overpayment of tax
required to be deducted and withheld under section 11-1771 of this chap-
ter, refund shall be made to the employer only to the extent that the
amount of the overpayment was not deducted and withheld by the employer.
(d) Overpayment by a deceased person. Notwithstanding section thir-
teen hundred ten of the surrogate's court procedure act, any overpayment
by a decedent not in excess of one thousand dollars may be refunded to
the decedent's surviving spouse unless the return for the decedent was
filed by his or her executor or administrator.
(e) Credits against estimated tax. The commissioner of taxation and
finance may prescribe regulations providing for the crediting against
the estimated income tax for any taxable year of the amount determined
to be an overpayment of the income tax for a preceding taxable year. If
any overpayment of income tax is so claimed as a credit against esti-
mated tax for the succeeding taxable year, such amount shall be consid-
ered as a payment of the income tax for the succeeding taxable year, and
no claim for credit or refund of such overpayment shall be allowed for
the taxable year for which the overpayment arises, except upon request
to the commissioner of taxation and finance on or before the last day
prescribed for the filing of the return for the succeeding taxable year,
determined with regard to any extension of time granted. If good cause
is shown for reversing the credit, the commissioner of taxation and
finance may, in his or her discretion, credit the overpayment against a
liability or refund the overpayment without interest. Provided, the
person who made the overpayment will not be relieved of liability for
any penalty imposed for a consequent underpayment of estimated tax for
the succeeding taxable year. The decision of the commissioner of taxa-
tion and finance to grant or deny the request is final and not subject
to further administrative or judicial review.
(f) Rule where no tax liability. If there is no tax liability for a
period in respect of which an amount is paid as income tax, such amount
shall be considered an overpayment.
(g) Assessment and collection after limitation period. If any amount
of income tax is assessed or collected after the expiration of the peri-
od of limitations properly applicable thereto, such amount shall be
considered an overpayment.
(h) Cross reference. For provision barring application of article
fifty-two of the civil practice law and rules to any amount to be
refunded or credited to a taxpayer, see section seven of the tax law.
§ 11-1787 Limitations on credit or refund. (a) General. Claim for
credit or refund of an overpayment of income tax shall be filed by the
taxpayer within three years from the time the return was filed or two
years from the time the tax was paid, whichever of such periods expires
the later, or if no return was filed, within two years from the time the
tax was paid. If the claim is filed within the three year period, the
amount of the credit or refund shall not exceed the portion of the tax
paid within the three years immediately preceding the filing of the
A. 10030 963
claim plus the period of any extension of time for filing the return.
If the claim is not filed within the three year period, but is filed
within the two year period, the amount of the credit or refund shall not
exceed the portion of the tax paid during the two years immediately
preceding the filing of the claim. Except as otherwise provided in this
section, if no claim is filed, the amount of a credit or refund shall
not exceed the amount which would be allowable if a claim had been filed
on the date the credit or refund is allowed.
(b) Extension of time by agreement. If an agreement under the
provisions of paragraph two of subdivision (c) of section 11-1783 of
this subchapter, extending the period for assessment of income tax, is
made within the period prescribed in subdivision (a) of this section
for the filing of a claim for credit or refund, the period for filing a
claim for credit or refund, or for making credit or refund if no claim
is filed, shall not expire prior to six months after the expiration of
the period within which an assessment may be made pursuant to the agree-
ment or any extension thereof. The amount of such credit or refund
shall not exceed the portion of the tax paid after the execution of the
agreement and before the filing of the claim or the making of the credit
or refund, as the case may be, plus the portion of the tax paid within
the period which would be applicable under subdivision (a) of this
section if a claim had been filed on the date the agreement was
executed.
(c) Notice of federal change or correction. A claim for credit or
refund of any overpayment of tax attributable to a federal change or
correction required to be reported pursuant to section 11-1759 of this
chapter shall be filed by the taxpayer within two years from the time
the notice of such change or correction or such amended return was
required to be filed with the commissioner of taxation and finance. If
the report or amended return required by section 11-1759 of this chapter
is not filed within the ninety day period therein specified, no interest
shall be payable on any claim for credit or refund of the overpayment
attributable to the federal change or correction. The amount of such
credit or refund shall not exceed the amount of the reduction in tax
attributable to such federal change, correction or items amended on the
taxpayer's amended federal income tax return. This subdivision shall
not affect the time within which or the amount for which a claim for
credit or refund may be filed apart from this subdivision.
(d) Overpayment attributable to net operating loss carryback. A claim
for credit or refund of so much of an overpayment as is attributable to
the application to the taxpayer of a net operating loss carryback shall
be filed within three years from the time the return was due, including
extensions thereof, for the taxable year of the loss, or within the
period prescribed in subdivision (b) of this section in respect of such
taxable year, or within the period prescribed in subdivision (c) of this
section, where applicable, in respect of the taxable year to which the
net operating loss is carried back, whichever expires the latest.
(e) Failure to file claim within prescribed period. No credit or
refund shall be allowed or made, except as provided in subdivision (f)
of this section or subdivision (d) of section 11-1790 of this subchap-
ter, after the expiration of the applicable period of limitation speci-
fied in this chapter, unless a claim for credit or refund is filed by
the taxpayer within such period. Any later credit shall be void and any
later refund erroneous. No period of limitations specified in any other
law shall apply to the recovery by a taxpayer of moneys paid in respect
of taxes under this chapter.
A. 10030 964
(f) Effect of petition to tax commission. If a notice of deficiency
for a taxable year has been mailed to the taxpayer under section 11-1781
of this subchapter and if the taxpayer files a timely petition with the
tax commission under section 11-1789 of this subchapter, it may deter-
mine that the taxpayer has made an overpayment for such year, whether or
not it also determines a deficiency for such a year. No separate claim
for credit or refund for such year shall be filed, and no credit or
refund for such year shall be allowed or made, except:
(1) as to overpayments determined by a decision of the tax commission
which has become final; and
(2) as to any amount collected in excess of an amount computed in
accordance with the decision of the tax commission which has become
final; and
(3) as to any amount collected after the period of limitation upon the
making of levy for collection has expired; and
(4) as to any amount claimed as a result of a change or correction
described in subdivision (c) of this section.
(g) Limit on amount of credit or refund. The amount of overpayment
determined under subdivision (f) of this section shall, when the deci-
sion of the tax commission has become final, be credited or refunded in
accordance with subdivision (a) of section 11-1786 of this subchapter
and shall not exceed the amount of tax which the tax commission deter-
mines as part of its decision was paid:
(1) after the mailing of the notice of deficiency, or
(2) within the period which would be applicable under subdivision (a),
(b) or (c) of this section, if on the date of the mailing of the notice
of deficiency a claim had been filed, whether or not filed, stating the
grounds upon which the tax commission finds that there is an overpay-
ment.
(h) Early return. For purposes of this section, any return filed
before the last day prescribed for the filing thereof shall be consid-
ered as filed on such last day, determined without regard to any exten-
sion of time granted the taxpayer.
(i) Prepaid income tax. For purposes of this section, any tax paid by
the taxpayer before the last day prescribed for its payment, any income
tax withheld from the taxpayer during any calendar year, and any amount
paid by the taxpayer as estimated income tax for a taxable year shall be
deemed to have been paid by him or her on the fifteenth day of the
fourth month following the close of his or her taxable year with respect
to which such amount constitutes a credit or payment.
(j) Return and payment of withholding tax. Notwithstanding subdivi-
sion (h) of this section, for purposes of this section with respect to
any withholding tax:
(1) if a return for any period ending with or within a calendar year
is filed before April fifteenth of the succeeding calendar year, such
return shall be considered filed on April fifteenth of such succeeding
calendar year; and
(2) if a tax with respect to remuneration paid during any period
ending with or within a calendar year is paid before April fifteenth of
the succeeding calendar year, such tax shall be considered paid on April
fifteenth of such succeeding calendar year.
(k) Running of periods of limitation suspended while taxpayer is
unable to manage financial affairs due to disability. (1) In the case of
an individual taxpayer, the running of the periods specified in subdivi-
sions (a), (b), and (c) of this section shall be suspended during any
period of such individual's life that such individual is financially
A. 10030 965
disabled. For purposes of this subdivision, an individual taxpayer is an
individual who is subject to the tax imposed under this chapter.
(2) For purposes of paragraph one of this subdivision, an individual
taxpayer is financially disabled if such individual is unable to manage
his or her financial affairs by reason of a medically determinable phys-
ical or mental impairment of that individual which can be expected to
result in death or which has lasted or can be expected to last for a
continuous period of not less than twelve months. An individual shall
not be considered to have such impairment unless proof of the existence
thereof is furnished in such form and manner as the commissioner of
taxation and finance may require.
(3) An individual taxpayer shall not be treated as financially disa-
bled during any period that such individual's spouse or any other person
is authorized to act on behalf of such individual in financial matters.
(l) Cross reference. For provision barring refund of overpayment
credited against tax of a succeeding year, see subdivision (e) of
section 11-1786 of this subchapter.
§ 11-1788 Interest on overpayment. (a) General. Notwithstanding the
provisions of section sixteen of the state finance law, interest shall
be allowed and paid as follows at the overpayment rate set by the
commissioner of taxation and finance pursuant to section 11-1797 of this
subchapter, or if no rate is set, at the rate of six percent per annum
upon any overpayment in respect of the tax imposed by this chapter:
(1) from the date of the overpayment to the due date of an amount
against which a credit is taken;
(2) from the date of the overpayment to a date, to be determined by
the commissioner of taxation and finance, preceding the date of a refund
check by not more than thirty days, whether or not such refund check is
accepted by the taxpayer after tender of such check to the taxpayer. The
acceptance of such check shall be without prejudice to any right of the
taxpayer to claim any additional overpayment and interest thereon.
(3) Late and amended returns and claims for credit or refund.
Notwithstanding paragraph one or two of this subdivision, in the case of
an overpayment claimed on a return of tax which is filed after the last
date prescribed for filing such return, determined with regard to exten-
sions, or claimed on an amended return of tax or claimed on a claim for
credit or refund, no interest shall be allowed or paid for any day
before the date on which such return or claim is filed.
(4) Interest on certain refunds. To the extent provided for in regu-
lations promulgated by the commissioner of taxation and finance, if an
item of income, gain, loss, deduction or credit is changed from the
taxable year or period in which it is reported to the taxable year or
period in which it belongs and the change results in an underpayment in
a taxable year or period and an overpayment in some other taxable year
or period, the provisions of paragraph three of this subdivision with
respect to an overpayment shall not be applicable to the extent that the
limitation in such paragraph on the right to interest would result in a
taxpayer not being allowed interest for a length of time with respect to
an overpayment while being required to pay interest on an equivalent
amount of the related underpayment. However, this paragraph shall not be
construed as limiting or mitigating the effect of any statute of limita-
tions or any other provision of law relating to the authority of such
commissioner to issue a notice of deficiency or to allow a credit or
refund on an overpayment.
(5) Amounts of less than one dollar. No interest shall be allowed or
paid if the amount thereof is less than one dollar.
A. 10030 966
(b) Advance payment of tax, payment of estimated tax, and credit for
income tax withholding. The provisions of subdivisions (h) and (i) of
section 11-1787 of this subchapter applicable in determining the date of
payment of tax for purposes of determining the period of limitations on
credit or refund, shall be applicable in determining the date of payment
for purposes of this section.
(c) Income tax refund within forty-five days of claim for overpayment.
If any overpayment of tax imposed by this chapter is credited or
refunded within forty-five days after the last date prescribed, or
permitted by extension of time, for filing the return of such tax on
which such overpayment was claimed or within forty-five days after such
return was filed, whichever is later, or within forty-five days after an
amended return was filed claiming such overpayment or within forty-five
days after a claim for credit or refund was filed on which such overpay-
ment was claimed, within six months after a demand is filed pursuant to
paragraph six of subsection (b) of section six hundred fifty-one of the
tax law, no interest shall be allowed under this section on any such
overpayment. For purposes of this subdivision, any amended return or
claim for credit or refund filed before the last day prescribed, or
permitted by extension of time, for the filing of the return of tax for
such year shall be considered as filed on such last day.
(d) Refund of income tax caused by carryback. For purposes of this
section, if any overpayment of tax imposed by this chapter results from
a carryback of a net operating loss, such overpayment shall be deemed
not to have been made prior to the filing date for the taxable year in
which such net operating loss arises. Such filing date shall be deter-
mined without regard to extensions of time to file. For purposes of
subdivision (c) of this section any overpayment described herein shall
be treated as an overpayment for the loss year and such subdivision
shall be applied with respect to such overpayment by treating the return
for the loss year as not filed before claim for such overpayment is
filed. The term "loss year" means the taxable year in which such loss
arises.
(e) No interest until return in processible form.
(1) For purposes of subdivisions (a) and (c) of this section, a return
shall not be treated as filed until it is filed in processible form.
(2) For purposes of paragraph one of this subdivision, a return is in
a processible form if:
(A) such return is filed on a permitted form, and
(B) such return contains:
(i) the taxpayer's name, address, and identifying number and the
required signatures, and
(ii) sufficient required information, whether on the return or on
required attachments, to permit the mathematical verification of tax
liability shown on the return.
(f) Overpayment credited against past-due support, or against a past-
due legally enforceable debt, or a city of New York tax warrant judgment
debt, or defaulted guaranteed student, state university or city univer-
sity loans. If interest is payable pursuant to this section on that
portion of an overpayment of tax imposed by this chapter which is certi-
fied by the state commissioner of taxation and finance to the state
comptroller as the amount to be credited against past-due support, or
against a past-due legally enforceable debt, or a city of New York tax
warrant judgment debt, or the amount of a default in repayment of a
guaranteed student, state university or city university loan, as the
case may be, pursuant to the provisions of sections one hundred seven-
A. 10030 967
ty-one-c, one hundred seventy-one-d, one hundred seventy-one-e, one
hundred seventy-one-f and one hundred seventy-one-l of the tax law, such
portion of such an overpayment shall cease to bear interest on the date
of such certification.
(g) Cross-reference. For provision with respect to interest after
failure to file notice of federal change under section 11-1759 of this
chapter, see subdivision (c) of section 11-1787 of this subchapter.
§ 11-1789 Petition to tax commission. (a) General. The form of a
petition to the tax commission, and further proceedings before the tax
commission in any case initiated by the filing of a petition, shall be
governed by such rules as the tax commission shall prescribe. No peti-
tion shall be denied in whole or in part without opportunity for a hear-
ing on reasonable prior notice. Such hearing shall be conducted by one
or more members of the tax commission, or by a hearing officer desig-
nated by the tax commission to take evidence and report to the tax
commission. The tax commissioners shall, acting as a body, jointly
decide the case as quickly as practicable. Notice of the decision shall
be mailed promptly to the taxpayer by certified or registered mail at
his or her last known address, and such notice shall set forth the tax
commission's findings of fact and a brief statement of the grounds of
decision in each case decided in whole or in part adversely to the
taxpayer.
(b) Petition for redetermination of a deficiency. Within ninety days,
or one hundred fifty days if the notice is addressed to a person outside
of the United States, after the mailing of the notice of deficiency
authorized by section 11-1781 of this subchapter, the taxpayer may file
a petition with the tax commission for a redetermination of the defi-
ciency. Such petition may also assert a claim for refund for the same
taxable year or years, subject to the limitations of subdivision (g) of
section 11-1787 of this subchapter.
(c) Petition for refund. A taxpayer may file a petition with the tax
commission for the amounts asserted in a claim for refund if:
(1) the taxpayer has filed a timely claim for refund with the tax
commission,
(2) the taxpayer has not previously filed with the tax commission a
timely petition under subdivision (b) of this section for the same
taxable year unless the petition under this subdivision relates to a
separate claim for credit or refund properly filed under subdivision (f)
of section 11-1787 of this subchapter, and
(3) either: (A) six months have expired since the claim was filed, or
(B) the tax commission has mailed to the taxpayer, by registered or
certified mail, a notice of disallowance of such claim in whole or in
part.
No petition under this subdivision shall be filed more than two years
after the date of mailing of a notice of disallowance, unless prior to
the expiration of such two year period it has been extended by written
agreement between the taxpayer and the tax commission. If a taxpayer
files a written waiver of the requirement that he or she be mailed a
notice of disallowance, the two year period prescribed by this subdivi-
sion for filing a petition for refund shall begin on the date such waiv-
er is filed.
(d) Assertion of deficiency after filing petition.
(1) Petition for redetermination of deficiency. If a taxpayer files
with the tax commission, a petition for redetermination of a deficiency,
the tax commission shall have power to determine a greater deficiency
than asserted in the notice of deficiency and to determine if there
A. 10030 968
should be assessed any addition to tax or penalty provided in section
11-1785 of this subchapter, if claim therefor is asserted at or before
the hearing under rules of the tax commission.
(2) Petition for refund. If the taxpayer files with the tax commis-
sion a petition for credit or refund for a taxable year, the tax commis-
sion may:
(A) determine a deficiency for such year as to any amount of defi-
ciency asserted at or before the hearing under rules of the tax commis-
sion, and within the period in which an assessment would be timely under
section 11-1783 of this subchapter, or
(B) deny so much of the amount for which credit or refund is sought
in the petition, as is offset by other issues pertaining to the same
taxable year which are asserted at or before the hearing under rules of
the tax commission.
(3) Opportunity to respond. A taxpayer shall be given a reasonable
opportunity to respond to any matters asserted by the tax commission
under this subdivision.
(4) Restriction on further notices of deficiency. If the taxpayer
files a petition with the tax commission under this section, no notice
of deficiency under section 11-1781 of this subchapter may thereafter be
issued by the tax commission for the same taxable year, except in case
of fraud or with respect to a change or correction required to be
reported under section 11-1759 of this chapter.
(e) Burden of proof. In any case before the tax commission under this
chapter, the burden of proof shall be upon the petitioner except for the
following issues, as to which the burden of proof shall be upon the tax
commission:
(1) whether the petitioner has been guilty of fraud with intent to
evade tax;
(2) whether the petitioner is liable as the transferee of property of
a taxpayer, but not to show that the taxpayer was liable for the tax;
(3) whether the petitioner is liable for any increase in a deficiency
where such increase is asserted initially after a notice of deficiency
was mailed and a petition under this section filed, unless such increase
in deficiency is the result of a change or correction required to be
reported under section 11-1759 of this chapter, and of which change or
correction the tax commission had no notice at the time it mailed the
notice of deficiency; and
(4) whether any person is liable for a penalty under subdivision (q)
or (r) of section 11-1785 of this subchapter.
(f) Evidence of related federal determination. Evidence of a federal
determination relating to issues raised in a case before the tax commis-
sion under this section shall be admissible, under rules established by
the tax commission.
(g) Jurisdiction over other years. The tax commission shall consider
such facts with relation to the taxes for other years as may be neces-
sary correctly to determine the tax for the taxable year, but in so
doing shall have no jurisdiction to determine whether or not the tax for
any other year has been overpaid or underpaid.
§ 11-1790 Review of tax commission decision. (a) General. A decision
of the tax commission shall be subject to judicial review at the
instance of any taxpayer effected thereby in the manner provided by law
for the review of a final decision or action of administrative agencies
of the state. An application by a taxpayer for such review must be made
within four months after notice of the decision is sent by certified or
registered mail to the taxpayer.
A. 10030 969
(b) Judicial review exclusive remedy of taxpayer. The review of a
decision of the tax commission provided by this section shall be the
exclusive remedy available to any taxpayer for the judicial determi-
nation of the liability of the taxpayer for the taxes imposed by this
chapter.
(c) Assessment pending review; review bond. Irrespective of any
restrictions on the assessment and collection of deficiencies, the tax
commission may assess a deficiency after the expiration of the period
specified in subdivision (a) of this section, notwithstanding that an
application for judicial review in respect of such deficiency has been
duly made by the taxpayer, unless the taxpayer, at or before the time
his or her application for review is made, has paid the deficiency, has
deposited with the tax commission the amount of the deficiency, or has
filed with the tax commission a bond, which may be a jeopardy bond under
subdivision (h) of section 11-1794 of this subchapter, in the amount of
the portion of the deficiency, including interest and other amounts, in
respect of which the application for review is made and all costs and
charges which may accrue against him or her in the prosecution of the
proceeding, including costs of all appeals, and with surety approved by
a justice of the supreme court of the state of New York, conditioned
upon the payment of the deficiency, including interest and other
amounts, as finally determined and such costs and charges. If as a
result of a waiver of the restrictions on the assessment and collection
of a deficiency any part of the amount determined by the tax commission
is paid after the filing of the review bond, such bond shall, at the
request of the taxpayer, be proportionately reduced.
(d) Credit, refund or abatement after review. If the amount of a
deficiency determined by the tax commission is disallowed in whole or in
part by the court of review, the amount so disallowed shall be credited
or refunded to the taxpayer, without the making of claim therefor, or,
if payment has not been made, shall be abated.
(e) Date of finality of tax commission decision. A decision of the
tax commission shall become final upon the expiration of the period
specified in subdivision (a) of this section for making an application
for review, if no such application has been duly made within such time,
or if such application has been duly made, upon expiration of the time
for all further judicial review, or upon the rendering by the tax
commission of a decision in accordance with the mandate of the court on
review, provided, however, for the purpose of making an application for
review, the decision of the tax commission shall be deemed final on the
date the notice of decision is sent by certified or registered mail to
the taxpayer.
§ 11-1791 Mailing rules; holidays; miscellaneous. (a) Timely mail-
ing. (1) If any return, claim, statement, notice, petition, or other
document required to be filed, or any payment required to be made, with-
in a prescribed period or on or before a prescribed date under authority
of any provision of this chapter is, after such period or such date,
delivered by United States mail to the tax commission, bureau, office,
officer or person with which or with whom such document is required to
be filed, or to which or to whom such payment is required to be made,
the date of the United States postmark stamped on the envelope shall be
deemed to be the date of delivery. This subdivision shall apply only if
the postmark date falls within the prescribed period or on or before the
prescribed date for the filing of such document, or for making the
payment, including any extension granted for such filing or payment, and
only if such document or payment was deposited in the mail, postage
A. 10030 970
prepaid, properly addressed to the tax commission, bureau, office, offi-
cer or person with which or with whom the document is required to be
filed or to which or to whom such payment is required to be made. If any
document or payment is sent by United States registered mail, such
registration shall be prima facie evidence that such document or payment
was delivered to the tax commission, bureau, office, officer or person
to which or to whom addressed. To the extent that the tax commission
shall prescribe by regulation, certified mail may be used in lieu of
registered mail under this section. This subdivision shall apply in the
case of postmarks not made by the United States post office only if and
to the extent provided by regulations of the tax commission.
(2)(A) Any reference in paragraph one of this subdivision to the
United States mail shall be treated as including a reference to any
delivery service designated by the secretary of the treasury of the
United States pursuant to section seventy-five hundred two of the Inter-
nal Revenue Code and any reference in paragraph one of this subdivision
to a postmark by the United States mail shall be treated as including a
reference to any date recorded or marked in the manner described in
section seventy-five hundred two of the Internal Revenue Code by a
designated delivery service. If the commissioner of taxation and finance
finds that any delivery service designated by such secretary is inade-
quate for the needs of the state, such commissioner may withdraw such
designation for purposes of this article. Such commissioner may also
designate additional delivery services meeting the criteria of section
seventy-five hundred two of the Internal Revenue Code for purposes of
this article, or may withdraw any such designation if such commissioner
finds that a delivery service so designated is inadequate for the needs
of the state. Any reference in paragraph one of this subdivision to the
United States mail shall be treated as including a reference to any
delivery service designated by such commissioner and any reference in
paragraph one of this subdivision to a postmark by the United States
mail shall be treated as including a reference to any date recorded or
marked in the manner described in section seventy-five hundred two of
the Internal Revenue Code by a delivery service designated by the
commissioner.
(B) Any equivalent of registered or certified mail designated by the
United States secretary of the treasury, or as may be designated by the
commissioner of taxation and finance pursuant to the same criteria used
by the secretary for such designation pursuant to section seventy-five
hundred two of the Internal Revenue Code, shall be included within the
meaning of registered or certified mail as used in paragraph one of this
subdivision. If such commissioner finds that any equivalent of regis-
tered or certified mail designated by such secretary or such commission-
er is inadequate for the needs of the state, such commissioner may with-
draw such designation for purposes of this article.
(b) Last known address. For purposes of this chapter, a taxpayer's
last known address shall be the address given in the last return filed
by such taxpayer, unless subsequent to the filing of such return the
taxpayer shall have notified the tax commission of a change of address.
(c) Last day a Saturday, Sunday or legal holiday. When the last day
prescribed under authority of this chapter, including any extension of
time, for performing any act falls on Saturday, Sunday, or a legal holi-
day in the state of New York, the performance of such act shall be
considered timely if it is performed on the next succeeding day which is
not a Saturday, Sunday or a legal holiday.
A. 10030 971
(d) Certificate; unfiled return. For purposes of this chapter, the
certificate of the tax commission to the effect that a tax has not been
paid, that a return has not been filed, or that information has not been
supplied, as required by or under the provisions of this chapter, shall
be prima facie evidence that such tax has not been paid, that such
return has not been filed, or that such information has not been
supplied.
(e) Attorney general; jurisdiction. The attorney general shall have
concurrent jurisdiction with any district attorney in the prosecution of
any offenses arising under article thirty-seven of the tax law with
respect to the tax imposed under this chapter.
§ 11-1792 Collection, levy and liens. (a) Collection procedures. The
taxes imposed by this chapter shall be collected by the tax commission,
and it may establish the mode or time for the collection of any amount
due it under this chapter if not otherwise specified. The tax commis-
sion shall, upon request, give a receipt for any sum collected under
this chapter. The tax commission may authorize banks or trust companies
which are depositaries or financial agents of the state to receive and
give a receipt for any tax imposed under this chapter in such manner, at
such times, and under such conditions as the tax commission may
prescribe; and the tax commission shall prescribe the manner, times and
conditions under which the receipt of such tax by such banks and trust
companies is to be treated as payment of such tax to the tax commission.
(b) Notice and demand for tax. The tax commission shall as soon as
practicable give notice to each person liable for any amount of tax,
addition to tax, penalty or interest, which has been assessed but
remains unpaid, stating the amount and demanding payment thereof. Such
notice shall be left at the dwelling or usual place of business of such
person or shall be sent by mail to such person's last known address.
Except where the tax commission determines that collection would be
jeopardized by delay, if any tax is assessed prior to the last date,
including any date fixed by extension, prescribed for payment of such
tax, payment of such tax shall not be demanded until after such date.
(c) Issuance of warrant after notice and demand. If any person liable
under this chapter for the payment of any tax, addition to tax, penalty
or interest neglects or refuses to pay the same within twenty-one calen-
dar days after notice and demand therefor is given to such person under
subdivision (b) of this section, ten business days if the amount for
which such notice and demand is made equals or exceeds one hundred thou-
sand dollars, the commissioner of taxation and finance may within six
years after the date of such assessment issue a warrant under such
commissioner's official seal directed to the sheriff of any county of
the state, or to any officer or employee of the department of taxation
and finance, commanding him or her to levy upon and sell such person's
real and personal property for the payment of the amount assessed, with
the cost of executing the warrant, and to return such warrant to such
commissioner and pay to him or her the money collected by virtue thereof
within sixty days after the receipt of the warrant. If such commissioner
finds that the collection of the tax or other amount is in jeopardy,
notice and demand for immediate payment of such tax may be made by such
commissioner and upon failure or refusal to pay such tax or other amount
such commissioner may issue a warrant without regard to the twenty-one
day period, or ten-day period if applicable, provided in this subdivi-
sion.
(d) Copy of warrant to be filed and lien to be created. Any sheriff
or officer or employee who receives a warrant under subdivision (c) of
A. 10030 972
this section shall within five days thereafter file a copy with the
clerk of the appropriate county. The clerk shall thereupon enter in the
judgment docket, in the column for judgment debtors, the name of the
taxpayer mentioned in the warrant, and in appropriate columns the tax or
other amounts for which the warrant is issued and the date when such
copy is filed; and such amount shall thereupon be a lien upon the title
to and interest in real, personal and other property of the taxpayer.
Such lien shall not apply to personal property unless such warrant is
filed in the department of state.
(e) Judgment. When a warrant has been filed with the county clerk
the tax commission shall, in the right of the city, be deemed to have
obtained judgment against the taxpayer for the tax or other amounts.
(f) Execution. The sheriff or officer or employee shall thereupon
proceed upon the warrant in all respects, with like effect, and in the
same manner prescribed by law in respect to executions issued against
property upon judgments of a court of record, and a sheriff shall be
entitled to the same fees for his or her services in executing the
warrant, to be collected in the same manner. An officer or employee of
the department of taxation and finance may proceed in any county or
counties of this state and shall have all the powers of execution
conferred by law upon sheriffs, but shall be entitled to no fee or
compensation in excess of actual expenses paid in connection with the
execution of the warrant.
(g) Taxpayer not a resident. Where a notice and demand under subdi-
vision (b) of this section shall have been given to a taxpayer who is
not then a resident, and it appears to the tax commission that it is not
practicable to find in this state property of the taxpayer sufficient to
pay the entire balance of tax or other amount owing by such taxpayer who
is not then a resident, the tax commission may, in accordance with
subdivision (c) of this section, issue a warrant directed to an officer
or employee of the department of taxation and finance, a copy of which
warrant shall be mailed by certified or registered mail to the taxpayer
at his or her last known address, subject to the rules for mailing
provided in subdivision (a) of section 11-1781 of this subchapter. Such
warrant shall command the officer or employee to proceed in Albany coun-
ty, and he or she shall, within five days after receipt of the warrant,
file the warrant and obtain a judgment in accordance with this section.
Thereupon the tax commission may authorize the institution of any action
or proceeding to collect or enforce the judgment in any place and by any
procedure that a civil judgment of the supreme court of the state of New
York could be collected or enforced. The tax commission may also, in
its discretion, designate agents or retain counsel for the purpose of
collecting, outside the state of New York, any unpaid taxes, additions
to tax, penalties or interest which have been assessed under this chap-
ter against taxpayers who are not residents of this state, may fix the
compensation of such agents and counsel to be paid out of money appro-
priated or otherwise lawfully available for payment thereof, and may
require of them bonds or other security for the faithful performance of
their duties, in such form and in such amount as the tax commission
shall deem proper and sufficient.
(h) Action by state for recovery of taxes. Action may be brought by
the attorney general at the instance of the tax commission in the name
of the city or both to recover the amount of any unpaid taxes, additions
to tax, penalties or interest which have been assessed under this chap-
ter within six years prior to the date the action is commenced.
A. 10030 973
(i) Release of lien. The tax commission, if it finds that the inter-
ests of the city will not thereby be jeopardized, and upon such condi-
tions as it may require, may release any property from the lien of any
warrant for unpaid taxes, additions to tax, penalties and interest filed
pursuant to this section, and such release may be recorded in the office
of any recording officer in which such warrant has been filed.
§ 11-1793 Transferees. (a) General. The liability, at law or in
equity, of a transferee of property of a taxpayer for any tax, additions
to tax, penalty or interest due under this chapter, shall be assessed,
paid, and collected in the same manner and subject to the same
provisions and limitations as in the case of the tax to which the
liability relates, except that the period of limitations for assessment
against the transferee shall be extended by one year for each successive
transfer, in order, from the original taxpayer to the transferee
involved, but not by more than three years in the aggregate. The term
transferee includes donee, heir, legatee, devisee and distributee.
(b) Exceptions.
(1) If before the expiration of the period of limitations for assess-
ment of liability of the transferee, a claim has been filed by the tax
commission in any court against the original taxpayer or the last
preceding transferee based upon the liability of the original taxpayer,
then the period of limitation for assessment of liability of the trans-
feree shall in no event expire prior to one year after such claim has
been finally allowed, disallowed or otherwise disposed of.
(2) If, before the expiration of the time prescribed in subdivision
(a) or the immediately preceding paragraph of this subdivision for the
assessment of the liability, the tax commission and the transferee have
both consented in writing to its assessment after such time, the liabil-
ity may be assessed at any time prior to the expiration of the period
agreed upon. The period so agreed upon may be extended by subsequent
agreements in writing made before the expiration of the period previous-
ly agreed upon. For the purpose of determining the period of limitation
on credit or refund to the transferee of overpayments of tax made by
such transferee or overpayments of tax made by the transferor as to
which the transferee is legally entitled to credit or refund, such
agreement and any extension thereof shall be deemed an agreement and
extension thereof referred to in subdivision (b) of section 11-1787 of
this subchapter. If the agreement is executed after the expiration of
the period of limitation for assessment against the original taxpayer,
then in applying the limitations under subdivision (b) of section
11-1787 of this subchapter on the amount of the credit or refund, the
periods specified in subdivision (a) of section 11-1787 of this subchap-
ter shall be increased by the period from the date of such expiration to
the date of the agreement.
(c) Deceased transferor. If any person is deceased, the period of
limitation for assessment against such person shall be the period that
would be in effect if he or she had lived.
(d) Evidence. Notwithstanding the provisions of subdivision (e) of
section 11-1797 of this subchapter the tax commission shall use its
powers to make available to the transferee evidence necessary to enable
the transferee to determine the liability of the original taxpayer and
of any preceding transferees, but without undue hardship to the original
taxpayer or preceding transferee. See subdivision (e) of section
11-1789 of this subchapter for rule as to burden of proof.
§ 11-1794 Jeopardy assessment. (a) Authority for making. If the tax
commission believes that the assessment or collection of a deficiency
A. 10030 974
will be jeopardized by delay, it shall, notwithstanding the provisions
of sections 11-1781 and 11-1796 of this subchapter, immediately assess
such deficiency, together with all interest, penalties and additions to
tax provided for by law, and notice and demand shall be made by the tax
commission for the payment thereof.
(b) Notice of deficiency. If the jeopardy assessment is made before
any notice in respect of the tax to which the jeopardy assessment
relates has been mailed under section 11-1781 of this subchapter, then
the tax commission shall mail a notice under such section within sixty
days after the making of the assessment.
(c) Amount assessable before decision of tax commission. The jeopardy
assessment may be made in respect of a deficiency greater or less than
that of which notice is mailed to the taxpayer and whether or not the
taxpayer has theretofore filed a petition with the tax commission. The
tax commission may, at any time before rendering its decision, abate
such assessment, or any unpaid portion thereof, to the extent that it
believes the assessment to be excessive in amount. The tax commission
may in its decision redetermine the entire amount of the deficiency and
of all amounts assessed at the same time in connection therewith.
(d) Amount assessable after decision of tax commission. If the
jeopardy assessment is made after the decision of the tax commission is
rendered, such assessment may be made only in respect of the deficiency
determined by the tax commission in its decision.
(e) Expiration of right to assess. A jeopardy assessment may not be
made after the decision of the tax commission has become final or after
the taxpayer has made an application for review of the decision of the
tax commission.
(f) Collection of unpaid amounts. When a petition has been filed with
the tax commission and when the amount which should have been assessed
has been determined by a decision of the tax commission which has become
final, then any unpaid portion, the collection of which has been stayed
by bond, shall be collected as part of the tax upon notice and demand
from the tax commission, and any remaining portion of the assessment
shall be abated. If the amount already collected exceeds the amount
determined as the amount which should have been assessed, such excess
shall be credited or refunded to the taxpayer as provided in section
11-1786 of this subchapter without the filing of claim therefor. If the
amount determined as the amount which should have been assessed is
greater than the amount actually assessed, then the difference shall be
assessed and shall be collected as part of the tax upon notice and
demand from the tax commission.
(g) Abatement if jeopardy does not exist. The tax commission may
abate the jeopardy assessment if it finds that jeopardy does not exist.
Such abatement may not be made after a decision of the tax commission in
respect of the deficiency has been rendered or, if no petition is filed
with the tax commission, after the expiration of the period for filing
such petition. The period of limitation on the making of assessments
and levy or a proceeding for collection, in respect of any deficiency,
shall be determined as if the jeopardy assessment so abated had not been
made, except that the running of such period shall in any event be
suspended for the period from the date of such jeopardy assessment until
the expiration of the tenth day after the day on which such jeopardy
assessment is abated.
(h) Bond to stay collection. The collection of the whole or any
amount of any jeopardy assessment may be stayed by filing with the tax
commission, within such time as may be fixed by regulation, a bond in an
A. 10030 975
amount equal to the amount as to which the stay is desired, conditioned
upon the payment of the amount, together with interest thereon, the
collection of which is stayed at the time at which, but for the making
of the jeopardy assessment, such amount would be due. Upon the filing
of the bond the collection of so much of the amount assessed as is
covered by the bond shall be stayed. The taxpayer shall have the right
to waive such stay at any time in respect of the whole or any part of
the amount covered by the bond, and if as a result of such waiver any
part of the amount covered by the bond is paid, then the bond shall at
the request of the taxpayer, be proportionately reduced. If any portion
of the jeopardy assessment is abated, or if a notice of deficiency under
section 11-1781 of this subchapter is mailed to the taxpayer in a lesser
amount, the bond shall, at the request of the taxpayer, be proportion-
ately reduced.
(i) Petition to tax commission. If the bond is given before the
taxpayer has filed his or her petition under section 11-1789 of this
subchapter, the bond shall contain a further condition that if a peti-
tion is not filed within the period provided in such section, then the
amount, the collection of which is stayed by the bond, will be paid on
notice and demand at any time after the expiration of such period,
together with interest thereon from the date of the jeopardy notice and
demand to the date of notice and demand under this subdivision. The
bond shall be conditioned upon the payment of so much of such assess-
ment, collection of which is stayed by the bond, as is not abated by a
decision of the tax commission which has become final. If the tax
commission determines that the amount assessed is greater than the
amount which should have been assessed, then the bond shall, at the
request of the taxpayer, be proportionately reduced when the decision of
the tax commission is rendered.
(j) Stay of sale of seized property pending tax commission decision.
Where a jeopardy assessment is made, the property seized for the
collection of the tax shall not be sold:
(1) if subdivision (b) of this section is applicable, prior to the
issuance of the notice of deficiency and the expiration of the time
provided in section 11-1789 of this subchapter for filing a petition
with the tax commission, and
(2) if a petition is filed with the tax commission, whether before or
after the making of such jeopardy assessment, prior to the expiration of
the period during which the assessment of the deficiency would be
prohibited if subdivision (a) of this section were not applicable.
Such property may be sold if the taxpayer consents to the sale, or if
the tax commission determines that the expenses of conservation and
maintenance will greatly reduce the net proceeds, or if the property is
perishable.
(k) Interest. For the purpose of subdivision (a) of section 11-1784
of this subchapter, the last date prescribed for payment shall be deter-
mined without regard to any notice and demand for payment issued under
this section prior to the last date otherwise prescribed for such
payment.
(l) Early termination of taxable year. If the tax commission finds
that a taxpayer designs quickly to depart from this state or to remove
his or her property therefrom, or to conceal himself or herself or his
or her property therein, or to do any other act tending to prejudice or
to render wholly or partly ineffectual proceedings to collect the city
personal income tax for the current or the preceding taxable year unless
such proceedings be brought without delay, the tax commission shall
A. 10030 976
declare the taxable period for such taxpayer immediately terminated, and
shall cause notice of such finding and declaration to be given the
taxpayer, together with a demand for immediate payment of the tax for
the taxable period so declared terminated and of the tax for the preced-
ing taxable year or so much of such tax as is unpaid, whether or not the
time otherwise allowed by law for filing return and paying the tax has
expired; and such taxes shall thereupon become immediately due and paya-
ble. In any proceeding brought to enforce payment of taxes made due and
payable by virtue of the provisions of this subdivision, the finding of
the tax commission made as herein provided, whether made after notice to
the taxpayer or not, shall be for all purposes presumptive evidence of
jeopardy.
(m) Reopening of taxable period. Notwithstanding the termination of
the taxable period of the taxpayer by the tax commission, as provided in
subdivision (1) of this section, the tax commission may reopen such
taxable period each time the taxpayer is found by the tax commission to
have received income, within the current taxable year, since the termi-
nation of such period. A taxable period so terminated by the tax
commission may be reopened by the taxpayer if he or she files with the
tax commission a true and accurate return of taxable income and credits
allowed under this chapter for such taxable period, together with such
other information as the tax commission may by regulations prescribe.
(n) Furnishing of bond where taxable year is closed by the tax
commission. Payment of taxes shall not be enforced by any proceedings
under the provisions of subdivision (1) of this section prior to the
expiration of the time otherwise allowed for paying such taxes if the
taxpayer furnishes, under regulations prescribed by the tax commission,
a bond to insure the timely making of returns with respect to, and
payment of, such taxes or any city personal income taxes for prior
years.
§ 11-1795 Criminal penalties; cross-reference. For criminal penal-
ties, see article thirty-seven of the tax law.
§ 11-1796 Income taxes of members of armed forces and victims of
certain terrorist attacks. (a) Time to be disregarded. In the case of
an individual serving in the armed forces of the United States, or serv-
ing in support of such armed forces, in an area designated by the presi-
dent of the United States by executive order as a "combat zone" at any
time during the period designated by the president by executive order as
the period of combatant activities in such zone, or hospitalized inside
or outside the state as a result of injury received while serving in
such an area during such time, the period of service in such area, plus
the period of continuous hospitalization inside or outside the state
attributable to such injury, and the next one hundred eighty days there-
after, shall be disregarded in determining, under this chapter, in
respect of the city personal income tax liability, including any inter-
est, penalty, or addition to the tax, of such individual:
(1) Whether any of the following acts was performed within the time
prescribed therefor:
(A) filing any return of income tax, except withholding tax;
(B) payment of any income tax, except withholding tax, or any install-
ment thereof or of any other liability in respect thereof;
(C) filing a petition with the tax commission for credit or refund or
for redetermination of a deficiency, or application for review of a
decision rendered by the tax commission;
(D) allowance of a credit or refund of city personal income tax;
(E) filing a claim for credit or refund of city personal income tax;
A. 10030 977
(F) assessment of city personal income tax;
(G) giving or making any notice or demand for the payment of any city
personal income tax, or with respect to any liability to the city in
respect of such income tax;
(H) collection, by the tax commission, by levy or otherwise of the
amount of any liability in respect of such income tax;
(I) bringing suit by the city, the state, or any officer, on their
behalf, in respect of any liability in respect of such income tax; and
(J) any other act required or permitted under this chapter or speci-
fied in regulations prescribed under this section by the tax commission.
(2) The amount of any credit or refund.
(b) Special rule for overpayments. (1) Subdivision (a) of this section
shall not apply for purposes of determining the amount of interest on
any overpayment of tax.
(2) If an individual is entitled to the benefits of subdivision (a) of
this section with respect to any return, amended return, or claim for
credit or refund, and such return, amended return or claim is timely
filed, determined after the application of such subdivision, paragraph
three of subdivision (a) and subdivision (c) of section 11-1788 of this
subchapter of this title shall not apply.
(c) Action taken before ascertainment of right to benefits. The
assessment or collection of the tax imposed by this chapter or of any
liability in respect of such tax, or any action or proceeding by or on
behalf of the city in connection therewith, may be made, taken, begun,
or prosecuted in accordance with law, without regard to the provisions
of subdivision (a) of this section, unless prior to such assessment,
collection, action, or proceeding it is ascertained that the person
concerned is entitled to the benefits of subdivision (a) of this
section.
(d) Members of armed forces dying in action. In the case of any person
who dies while in active service as a member of the armed forces of the
United States, if such death occurred while serving in a combat zone
during a period of combatant activities in such zone, as described in
subdivision (a) of this section, or as a result of wounds, disease or
injury incurred while so serving, the tax imposed by this chapter shall
not apply with respect to the taxable year in which falls the date of
his or her death, or with respect to any prior taxable year ending on or
after the first day so served in a combat zone, and no returns shall be
required in behalf of such person or his or her estate for such year;
and the tax for any such taxable year which is unpaid at the date of
death, including interest, additions to tax and penalties, if any, shall
not be assessed and, if assessed, the assessment shall be abated and, if
collected, shall be refunded to the legal representative of such estate
if one has been appointed and has qualified, or, if no legal represen-
tative has been appointed or has qualified, to the surviving spouse.
(e) Treatment of individuals performing Desert Shield services. (1)
Any individual who performed Desert Shield services shall be entitled to
the benefits of subdivisions (a) and (b) of this section in the same
manner as if such services were services referred to in subdivision (a)
of this section.
(2) For purposes of this subdivision, the term "Desert Shield
services" means any services in the armed forces of the United States or
in support of such armed forces if
(A) such services are performed in the area designated by the presi-
dent of the United States as the "Persian Gulf Desert Shield area", and
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(B) such services are performed during the period beginning on August
second, nineteen hundred ninety, and ending on the date on which any
portion of the area referred to in subparagraph (A) of this paragraph is
designated by the president as a combat zone pursuant to section one
hundred twelve of the internal revenue code.
(f) Relief for personnel under hostile fire. For purposes of this
section, members of the armed forces of the United States who perform
military service in an area outside an area designated by the president
of the United States by executive order as a "combat zone", which
service is in direct support of military operations in such zone and is
performed under conditions which qualify such members for hostile fire
pay, as authorized under subdivision (a) of section nine of the federal
uniformed services pay act of nineteen hundred sixty-three, shall,
during the period of such qualifying service, be deemed to have served
in such combat zone.
(g) Application to spouse. The provisions of subdivisions (a), (b),
(c), (e) and (f) of this section shall apply to the spouse of any indi-
vidual entitled to the benefits of subdivision (a) of this section;
provided, however, that such subdivisions shall not apply for any spouse
for any taxable year beginning more than two years after the date desig-
nated under section one hundred twelve of the internal revenue code as
the date of termination of combatant activities in a combat zone.
(h) Individuals dying as a result of certain attacks. (1) General. In
the case of a specified terrorist victim, any tax imposed by this chap-
ter shall not apply: (A) with respect to the taxable year in which
falls the date of death; and (B) with respect to any prior taxable year
in the period beginning with the last taxable year ending before the
taxable year in which the wounds or injury referred to in paragraph
three of this subdivision were incurred.
(2) Taxation of certain benefits. Paragraph one of this subdivision
shall not apply to the amount of any tax imposed by this chapter which
would be computed by only taking into account the items of income, gain,
or other amounts determined by the United States secretary of the treas-
ury to be taxable pursuant to paragraph three of subdivision (d) of
section six hundred ninety-two of the internal revenue code.
(3) Specified terrorist victim. For purposes of this subdivision, the
term "specified terrorist victim" means any decedent who dies as a
result of wounds or injury incurred as a result of the terrorist attacks
against the United States on September eleventh, two thousand one,
provided, however, such term shall not include any individual identified
by the attorney general of the United States to have been a participant
or conspirator in any such attack or a representative of such an indi-
vidual.
§ 11-1797 General powers of tax commission. (a) General. The tax
commission shall administer and enforce the tax imposed by this chapter
and it is authorized to make such rules and regulations, and to require
such facts and information to be reported, as it may deem necessary to
enforce the provisions of this chapter.
(b) Examination of books and witnesses. (1) The tax commission for the
purpose of ascertaining the correctness of any return, or for the
purpose of making an estimate of taxable income of any person, shall
have power to examine or to cause to have examined, by any agent or
representative designated by it for that purpose, any books, papers,
records or memoranda bearing upon the matters required to be included in
the return, and may require the attendance of the person rendering the
return or any officer or employee of such person, or the attendance of
A. 10030 979
any other person having knowledge in the premises, and may take testimo-
ny and require proof material for its information, with power to admin-
ister oaths to such person or persons.
(2) The tax commission may take any action under paragraph one of this
subdivision to inquire into the commission of any offense connected with
the administration or enforcement of this chapter, provided, however,
that notwithstanding the provisions of section 11-1774 of this chapter
no such action shall be taken after a referral by the department or the
tax commission to the attorney general, a district attorney or any other
prosecutorial agency is in effect.
(c) Abatement authority. The tax commission, of its own motion, may
abate any small unpaid balance of an assessment of city personal income
tax, or any liability in respect thereof, if the tax commission deter-
mines under uniform rules prescribed by it that the administration and
collection costs involved would not warrant collection of the amount
due. It may also abate, of its own motion, the unpaid portion of the
assessment of any tax or any liability in respect thereof, which is
excessive in amount, or is assessed after the expiration of the period
of limitation properly applicable thereto, or is erroneously or illegal-
ly assessed. No claim for abatement under this subdivision shall be
filed by a taxpayer.
(d) Special refund authority. Where no questions of fact or law are
involved and it appears from the records of the tax commission that any
moneys have been erroneously or illegally collected from any taxpayer or
other person, or paid by such taxpayer or other person under a mistake
of facts, pursuant to the provisions of this chapter, the tax commission
at any time, without regard to any period of limitations, shall have the
power, upon making a record of its reasons therefor in writing, to cause
such moneys so paid and being erroneously and illegally held to be
refunded and to issue therefor its certificate to the comptroller.
(e) Secrecy requirement and penalties for violation. (1) Except in
accordance with proper judicial order or as otherwise provided by law,
it shall be unlawful for the tax commission, any tax commissioner, any
officer or employee of the department of taxation and finance, any
person engaged or retained by such department on an independent contract
basis, any depositary to which any return may be delivered as provided
in subdivision (h) or (i) of this section, any officer or employee of
such depositary, or any person who, pursuant to this section, is permit-
ted to inspect any report or return or to whom a copy, an abstract or a
portion of any report or return is furnished, or to whom any information
contained in any report or return is furnished, to divulge or make known
in any manner the amount of income or any particulars set forth or
disclosed in any report or return required under this chapter.
(2) The officers charged with the custody of such reports and returns
shall not be required to produce any of them or evidence of anything
contained in them in any action or proceeding in any court, except on
behalf of the tax commission in an action or proceeding under the
provisions of this chapter, the tax law or in any other action or
proceeding involving the collection of a tax due under this chapter or
such tax law to which the city, state or the tax commission is a party
or a claimant, or on behalf of any party to any action or proceeding
under the provisions of this chapter when the reports, returns or facts
shown thereby are directly involved in such action or proceeding, in any
of which events the court may require the production of, and may admit
in evidence, so much of said reports, returns or of the facts shown
thereby, as are pertinent to the action or proceeding and no more. The
A. 10030 980
tax commission may, nevertheless, publish a copy or a summary of any
decision rendered after the hearing required under section 11-1789 of
this subchapter.
(3) Nothing in this section shall be construed to prohibit the deliv-
ery by the state commissioner of taxation and finance to the county
clerk of a county within the city of New York of a mailing list of indi-
viduals to whom income tax forms are mailed by the state commissioner of
taxation and finance for the sole purpose of compiling a list of
prospective jurors as provided in article sixteen of the judiciary law.
Provided, however, such delivery shall only be made pursuant to an order
of the chief administrator of the courts, appointed pursuant to section
two hundred ten of such law. No such order may be issued unless such
chief administrator is satisfied that such mailing list is needed to
compile a proper list of prospective jurors for the county for which
such order is sought and that, in view of the responsibilities imposed
by the various laws of the state on the department of taxation and
finance, it is reasonable to require the state commissioner of taxation
and finance to furnish such list. Such order shall provide that such
list shall be used for the sole purpose of compiling a list of prospec-
tive jurors and that such county clerk shall take all necessary steps to
insure that the list is kept confidential and that there is no unauthor-
ized use or disclosure of such list. Furthermore, nothing in this
section shall be construed to prohibit the delivery to a taxpayer or his
or her duly authorized representative of a certified copy of any return
or report filed in connection with his or her tax or to prohibit the
publication of statistics so classified as to prevent the identification
of particular reports or returns and the items thereof, or the
inspection by the attorney general or other legal representatives of the
state or city of the report or return of any taxpayer who shall bring
action to set aside or review the tax based thereon, or against whom an
action or proceeding under this chapter has been recommended by the
commissioner of taxation and finance, the corporation counsel or the
attorney general or has been instituted, or the inspection of the
reports or returns required under this chapter by the comptroller or
duly designated officer or employee of the state department of audit and
control, for purposes of the audit of a refund of any tax paid by a
taxpayer under this chapter, or the furnishing to the state department
of social services of the amount of an overpayment of tax and interest
thereon certified to the comptroller to be credited against past-due
support pursuant to section one hundred seventy-one-c of the tax law and
of the name and social security number of the taxpayer who made such
overpayment or the furnishing to the New York state higher education
services corporation of the amount of an overpayment of tax and interest
thereon certified to the comptroller to be credited against the amount
of a default in repayment of a guaranteed student loan pursuant to
section one hundred seventy-one-d of the tax law and of the name and
social security number of the taxpayer who made such overpayment or the
furnishing to the state university of New York or the city university of
New York or the attorney general on behalf of such state or city univer-
sity the amount of an overpayment of tax and interest thereon certified
to the comptroller to be credited against the amount of a default in
repayment of a state university loan or city university loan pursuant to
section one hundred seventy-one-e of the tax law and of the name and
social security number of the taxpayer who made such overpayment, or the
disclosing to a state agency, pursuant to section one hundred seventy-
one-f of the tax law, of the amount of an overpayment and interest ther-
A. 10030 981
eon certified to the comptroller to be credited against a past-due
legally enforceable debt owed to such agency and of the name and social
security number of the taxpayer who made such overpayment, or the
disclosing to the commissioner of finance of the city of New York,
pursuant to section one hundred seventy-one-1 of the tax law, of the
amount of an overpayment and interest thereon certified to the comp-
troller to be credited against a city of New York tax warrant judgment
debt and of the name and social security number of the taxpayer who made
such overpayment. Reports and returns shall be preserved for three years
and thereafter until the state commissioner of taxation and finance
orders them to be destroyed.
(3-a) Notwithstanding the provisions of paragraph one of this subdivi-
sion, the state commissioner of taxation and finance or the commissioner
of finance may disclose to a taxpayer or a taxpayer's related member, as
defined in subdivision (t) of section 11-1712 of this chapter, informa-
tion relating to any royalty paid, incurred or received by such taxpayer
or related member to or from the other, including the treatment of such
payments by the taxpayer or the related member in any report or return
transmitted to the state commissioner of taxation and finance under this
chapter or the New York state tax law or the commissioner of finance
under this title.
(4) (A) Any officer or employee of the state, who willfully violates
the provisions of this subdivision shall be dismissed from office and be
incapable of holding any public office in this state for a period of
five years thereafter.
(B) Cross-reference: For criminal penalties, see article thirty-seven
of the tax law.
(f) Cooperation with the United States and other states. Notwith-
standing the provisions of subdivision (e) of this section, the tax
commission may permit the secretary of the treasury of the United States
or his or her delegates, or the proper tax officer of any state imposing
an income tax upon the incomes of individuals, or the authorized repre-
sentative of either such officer, to inspect any return filed under this
chapter, or may furnish to such officer or his or her authorized repre-
sentative an abstract of any such return or supply him or her with
information concerning an item contained in any such return, or
disclosed by any investigation of tax liability under this chapter, but
such permission shall be granted or such information furnished to such
officer or his or her representative only if the laws of the United
States or of such other state, as the case may be, grant substantially
similar privileges to the commission or officer of this state charged
with the administration of the tax imposed by this chapter and such
information is to be used for tax purposes only; and provided further
the commissioner of taxation and finance may furnish to the commissioner
of internal revenue or his or her authorized representative such returns
filed under this chapter and other tax information, as he or she may
consider proper, for use in court actions or proceedings under the
internal revenue code, whether civil or criminal, where a written
request therefor has been made to the commissioner of taxation and
finance by the secretary of the treasury of the United States or his or
her delegates, provided the laws of the United States grant substantial-
ly similar powers to the secretary of the treasury of the United States
or his or her delegates. Where the commissioner of taxation and finance
has so authorized use of returns and other information in such actions
or proceedings, officers and employees of the department of taxation and
A. 10030 982
finance may testify in such actions or proceedings in respect to such
returns or other information.
(g) Cooperation with the cities of the state of New York. Notwith-
standing the provisions of subdivision (e) of this section, the tax
commission may permit the proper city officer of any city of the state
of New York imposing a personal income tax upon the incomes of resi-
dents, or an unincorporated business income tax, or an earnings tax on
nonresidents, or the authorized representative of any such officer, to
inspect any return filed under this chapter, or may furnish to such
officer or his or her authorized representative an abstract of any such
return or supply him or her with information concerning an item
contained in any such return, or disclosed by any investigation of tax
liability under this chapter, but such permission shall be granted or
such information furnished to such officer or his or her representative
only if the local laws of such city grant substantially similar privi-
leges to the commission or officer of this state charged with the admin-
istration of the tax imposed by this chapter and such information is to
be used for tax purposes only; and provided further the commissioner of
taxation and finance may furnish to such city officer or the legal
representative of such city such returns filed under this chapter and
other tax information, as he or she may consider proper, for use in
court actions or proceedings under such local law, whether civil or
criminal, where a written request therefor has been made to the commis-
sioner of taxation and finance by such city officer or his or her dele-
gate, provided the local law of such city grants substantially similar
powers to such city officer or his or her delegate. Where the commis-
sioner of taxation and finance has so authorized use of returns and
other information in such actions or proceedings, officers and employees
of the department of taxation and finance may testify in such actions or
proceedings in respect to such returns or other information.
(h) Withholding returns. Notwithstanding the provisions of subdivision
(e) of this section the tax commission in its discretion, when making
deposits, pursuant to section 11-1798 of this subchapter, of taxes with-
held by employers, may deliver to the depositary the withholding returns
filed by such employers as provided in section 11-1774 of this chapter,
for the purpose of insuring that all money so deposited shall be
correctly credited to taxpayers' accounts.
(i) Filing returns and making payments to depository banks. Notwith-
standing the provisions of subdivision (e) of this section, the tax
commission, in its discretion, may require or permit any or all individ-
uals, estates or trusts liable for any tax imposed by this chapter, to
make payments on account of estimated tax and payment of any tax, penal-
ty or interest imposed by this chapter to banks, banking houses or trust
companies designated by the tax commission and to file reports and
returns with such banks, banking houses or trust companies as agents of
the tax commission, in lieu of making any such payment to the tax
commission. However, the tax commission shall designate only such banks,
banking houses or trust companies as are or shall be designated by the
comptroller as depositories pursuant to section 11-1798 of this subchap-
ter.
(j) (1) Authority to set interest rates. The commissioner of taxation
and finance shall set the overpayment and underpayment rates of interest
to be paid pursuant to sections 11-1784, 11-1785 and 11-1788 of this
subchapter, but if no such rates of interest are set, such overpayment
rate shall be deemed to be set at six percent per annum and the under-
payment rate shall be deemed to be set at seven and one-half per annum.
A. 10030 983
Such rates shall be the rates prescribed by paragraphs two and four of
this subdivision, but shall not be less than seven and one-half percent
per annum. Any such rates set by such commissioner shall apply to taxes,
or any portion thereof, which remain or become due or overpaid on or
after the date on which such rates become effective and shall apply only
with respect to interest computed or computable for periods or portions
of periods occurring in the period during which such rates are in
effect.
(1) Authority to set interest rates. The commissioner of taxation and
finance shall set the overpayment and underpayment rates of interest to
be paid pursuant to sections 11-1784, 11-1785 and 11-1788 of this
subchapter, but if no such rates of interest are set, such rates shall
be deemed to be set at six percent per annum. Such rates shall be the
rates prescribed by paragraphs two and four of this subdivision, but the
underpayment rate shall not be less than six percent per annum. Any such
rates set by such commissioner shall apply to taxes, or any portion
thereof, which remain or become due or overpaid on or after the date on
which such rates become effective and shall apply only with respect to
interest computed or computable for periods or portions of periods
occurring in the period during which such rates are in effect.
(2) Rates of interest. (A) Overpayment rate. The overpayment rate of
interest set under this subdivision shall be the sum of (i) the federal
short-term rate as provided under paragraph three of this subdivision,
plus (ii) two percentage points.
(B) Underpayment rate. The underpayment rate of interest set under
this subdivision shall be the sum of (i) the federal short-term rate as
provided under paragraph three of this subdivision, plus (ii) five and
one-half percentage points.
(3) Federal short-term rate. For the purposes of this subdivision:
(A) The federal short-term rate for any month shall be the federal
short-term rate determined by the United States secretary of the treas-
ury during such month in accordance with subsection (d) of section
twelve hundred seventy-four of the internal revenue code for use in
connection with section six thousand six hundred twenty-one of the
internal revenue code. Any such rate shall be rounded to the nearest
full percent, or, if a multiple of one-half of one percent, such rate
shall be increased to the next highest full percent.
(B) Period during which rate applies.
(i) In general. Except as provided in clauses (ii) and (iii) of this
subparagraph, the federal short-term rate for the first month in each
calendar quarter shall apply during the first calendar quarter beginning
after such month.
(ii) Special rule for individual estimated tax. In determining the
addition to tax under subdivision (c) of section 11-1785 of this
subchapter for failure to pay estimated tax for any taxable year, the
federal short-term rate which applies during the third month following
the taxable year shall also apply during the first fifteen days of the
fourth month following such taxable year.
(iii) Special rule for the month of September, nineteen hundred eight-
y-nine. The federal short-term rate for the month of April, nineteen
hundred eighty-nine shall apply with respect to setting the rate of
interest for the month of September, nineteen hundred eighty-nine.
(4) Notwithstanding the provisions of paragraph two of this subdivi-
sion to the contrary, in the case of interest payable by an employer
with respect to income taxes required to be withheld and paid over by
him or her pursuant to the provisions of subchapter four of this chapter
A. 10030 984
and with respect to interest payable to an employer pursuant to subdivi-
sion (c) of section 11-1786 of this subchapter, the rates of interest
prescribed by this section shall be the overpayment and underpayment
rates of interest prescribed in paragraph two of subsection (e) of
section one thousand ninety-six of the tax law.
(5) In computing the amount of any interest required to be paid under
this article by the commissioner of taxation and finance or by the
taxpayer, or any other amount determined by reference to such amount of
interest, such interest and such amount shall be compounded daily. The
provisions of this paragraph shall not apply for purposes of computing
the amount of any addition to tax for failure to pay estimated tax under
subdivision (c) of section 11-1785 of this subchapter.
(6) Publication of interest rates. The commissioner of taxation and
finance shall cause to be published in the section for miscellaneous
notices in the state register, and give other appropriate general notice
of, the interest rates to be set under this subdivision no later than
twenty days preceding the first day of the calendar quarter during which
such interest rates apply. The setting and publication of such interest
rates shall not be included within paragraph (a) of subdivision two of
section one hundred two of the state administrative procedure act relat-
ing to the definition of a rule.
(7) Cross-reference. For provisions relating to the power of the
commissioner of taxation and finance to abate small amounts of interest,
see subdivision (c) of this section.
(k) Disclosure of collection activities with respect to joint return.
Notwithstanding the provisions of subdivision (e) of this section, if
any deficiency of tax with respect to a joint return is assessed and the
individuals filing such return are no longer married or no longer reside
in the same household, upon request in writing by either of such indi-
viduals, the commissioner of taxation and finance shall disclose in
writing to the individual making the request whether such commissioner
has attempted to collect such deficiency from such other individual, the
general nature of such collection activities, and the amount collected.
The opening paragraph of this subdivision shall not apply to any defi-
ciency which may not be collected by reason of expiration of time within
which to issue a warrant under subdivision (c) of section 11-1792 of
this subchapter or within which to collect such tax by execution and
levy or by court proceeding.
(l) Disclosure of certain information where more than one person is
subject to penalty. If the commissioner of taxation and finance deter-
mines that a person is liable for a penalty under subdivision (g) of
section 11-1785 of this subchapter with respect to any failure, upon
request in writing of such person, such commissioner shall disclose in
writing to such person (1) the name of any other person whom such
commissioner has determined to be liable for such penalty with respect
to such failure, and (2) whether such commissioner has attempted to
collect such penalty from such other person, the general nature of such
collection activities, and the amount collected.
(m) (1) Notwithstanding the provisions of subdivision (e) of this
section, upon written request from the chairperson of the committee on
ways and means of the United States House of Representatives, the chair-
person of the committee on finance of the United States Senate, or the
chairperson of the joint committee on taxation of the United States
Congress, the commissioner of taxation and finance shall furnish such
committee with any current or prior year returns specified in such
request that were filed under this article by the president of the
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United States, vice-president of the United States, member of the United
States Congress representing New York state, or any person who served in
or was employed by the executive branch of the government of the United
States on the executive staff of the president, in the executive office
of the president, or in an acting or confirmed capacity in a position
subject to confirmation by the United States senate; or, in New York
state: a statewide elected official, as defined in paragraph (a) of
subdivision one of section seventy-three-a of the public officers law; a
state officer or employee, as defined in subparagraph (i) of paragraph
(c) of subdivision one of such section seventy-three-a; a political
party chairperson, as defined in paragraph (h) of subdivision one of
such section seventy-three-a; a local elected official, as defined in
subdivisions one and two of section eight hundred ten of the general
municipal law; a person appointed, pursuant to law, to serve due to
vacancy or otherwise in the position of a local elected official, as
defined in subdivisions one and two of section eight hundred ten of the
general municipal law; a member of the state legislature; or a judge or
justice of the unified court system; provided however that, prior to
furnishing any return, the commissioner shall redact any copy of a
federal return, or portion thereof, attached to, or any information on a
federal return that is reflected on, such return, and any social securi-
ty numbers, account numbers and residential address information.
(2) No returns shall be furnished pursuant to this subdivision unless
the chairperson of the requesting committee certifies in writing that
such returns have been requested related to, and in furtherance of, a
legitimate task of the Congress, that the requesting committee has made
a written request to the United States secretary of the treasury for
related federal reports or returns or report or return information,
pursuant to 26 U.S.C. Section 6103(f), and that if such requested
returns are inspected by and/or submitted to another committee, to the
United States House of Representatives, or to the United States Senate,
then such inspection and/or submission shall occur in a manner consist-
ent with federal law as informed by the requirements and procedures
established in 26 U.S.C. Section 6103(f).
§ 11-1798 Deposit and disposition of revenues. All revenue collected
by the state commissioner of taxation and finance from the taxes imposed
pursuant to this chapter or chapter nineteen of this title shall be
deposited daily with such responsible banks, banking houses or trust
companies, as may be designated by the state comptroller, to the credit
of the comptroller, in trust for the city. Such deposits shall be kept
in trust and separate and apart from all other moneys in the possession
of the comptroller. The state comptroller shall require adequate securi-
ty from all such depositories of such revenue collected by the state
commissioner of taxation and finance. The state comptroller shall retain
in his or her hands such amounts as the commissioner of taxation and
finance may determine to be necessary for refunds in respect to the
taxes imposed by this chapter and such chapter nineteen and for reason-
able costs of the state commissioner of taxation and finance in adminis-
tering, collecting and distributing such taxes, out of which the comp-
troller shall pay any refunds of such taxes to which taxpayers shall be
entitled under this chapter and such chapter nineteen and except further
that he or she shall pay to a non-obligated spouse that amount of over-
payment of tax imposed pursuant to the authority of article thirty of
the tax law or former article two-E of the general city law and the
interest on such amount which has been credited pursuant to section one
hundred seventy-one-c, one hundred seventy-one-d, one hundred seventy-
A. 10030 986
one-e, one hundred seventy-one-f or one hundred seventy-one-l of the tax
law and which is certified to him or her by the commissioner of taxation
and finance as the amount due such non-obligated spouse pursuant to
paragraph six of subsection (b) of section six hundred fifty-one of the
tax law, and he or she shall deduct a like amount which he shall pay
into the treasury to the credit of the general fund from amounts subse-
quently payable to the department of social services, the state univer-
sity of New York, the city university of New York, the higher education
services corporation, or to the revenue arrearage account or special
offset fiduciary account pursuant to section ninety-one-a or
ninety-one-c of the state finance law, as the case may be, whichever had
been credited the amount originally withheld from such overpayment and,
with respect to amounts originally withheld from such overpayment pursu-
ant to section one hundred seventy-one-l of the tax law and paid to the
city of New York, the comptroller shall collect a like amount from the
city of New York. The state comptroller, after reserving such refund
fund and such costs shall, on or before the fifteenth day of each month,
pay to the chief fiscal officer of the city the balance of such taxes
collected, to be paid into the treasury of the city to the credit of the
general fund except that he or she shall pay to the state department of
social services that amount of overpayments of the taxes imposed pursu-
ant to this chapter or chapter nineteen of this title and the interest
on such amount which is certified to him or her by the state commission-
er of taxation and finance as the amount to be credited against past-due
support pursuant to subdivision six of section one hundred seventy-one-c
of the tax law and except that he or she shall pay to the New York state
higher education services corporation that amount of overpayments of the
taxes imposed pursuant to this chapter or chapter nineteen of this title
and the interest on such amount which is certified to him or her by the
state commissioner of taxation and finance as the amount to be credited
against the amount of defaults in repayment of guaranteed student loans
pursuant to subdivision five of section one hundred seventy-one-d of the
tax law and except that he or she shall pay to the state university of
New York or the city university of New York, respectively, that amount
of overpayments of the taxes imposed pursuant to this chapter or chapter
nineteen of this title and the interest on such amount which is certi-
fied to him or her by the state commissioner of taxation and finance as
the amount to be credited against the amount of defaults in repayment of
state university or city university loans pursuant to subdivision six of
section one hundred seventy-one-e of the tax law, and except further
that, notwithstanding any other provision of law, he or she shall credit
to the revenue arrearage account, pursuant to section ninety-one-a of
the state finance law, that amount of overpayments of the taxes imposed
pursuant to this chapter or chapter nineteen of this title and the
interest on such amount which is certified to him or her by the state
commissioner of taxation and finance as the amount to be credited
against a past-due legally enforceable debt owed to a state agency
pursuant to paragraph (a) of subdivision six of section one hundred
seventy-one-f of the tax law, provided, however, he or she shall credit
to the special offset fiduciary account, pursuant to section
ninety-one-c of the state finance law, any such amount creditable as a
liability as set forth in paragraph (b) of subdivision six of section
one hundred seventy-one-f of the tax law, and except further that he or
she shall pay to the city of New York that amount of overpayments of tax
imposed pursuant to this chapter or chapter nineteen of this title and
the interest on such amount which is certified to him or her by the
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state commissioner of taxation and finance as the amount to be credited
against city of New York tax warrant judgment debt pursuant to section
one hundred seventy-one-l of the tax law. The amount deducted for admin-
istering, collecting and distributing such taxes during such monthly
period shall be paid by the state comptroller into the general fund of
the state treasury to the credit of the state purposes fund therein. The
first payment to such chief fiscal officer shall be made on or before
March fifteenth, nineteen hundred seventy-six, which payment shall
represent the balance of revenue after provision for refund and such
reasonable costs, with respect to taxes collected from January first,
nineteen hundred seventy-six through February twenty-ninth, nineteen
hundred seventy-six. Subsequent payments shall be made on or before
April fifteenth, nineteen hundred seventy-six and on or before the
fifteenth day of each succeeding month thereafter, and shall represent
the balance of revenue with respect to taxes collected the preceding
calendar month. The amounts so payable shall be certified to the state
comptroller by the state commissioner of taxation and finance or his or
her delegate, either of whom shall not be held liable for any inaccuracy
in such certificate. Where the amount so paid over to such chief fiscal
officer is more or less than the amount then due such city, the amount
of overpayment or underpayment shall be certified to the state comp-
troller by the state commissioner of taxation and finance or his or her
delegate, either of whom shall not be held liable for any inaccuracy in
such certificate. The amount of overpayment or underpayment shall be so
certified to the state comptroller as soon after the discovery of the
overpayment or underpayment as reasonably possible and subsequent
payments by the state comptroller to such chief fiscal officer shall be
adjusted by subtracting the amount of any such overpayment from, or by
adding the amount of any such underpayment to such number of subsequent
payments and distributions as the state comptroller and the state
commissioner of taxation and finance shall consider reasonable in view
of the amount of the overpayment or underpayment and all other facts and
circumstances.
§ 11-1800 Enforcement with other taxes. (a) If there is assessed a
tax under this chapter and there is also assessed a tax or taxes against
the same taxpayer pursuant to article twenty-two of the tax law or under
chapter nineteen of this title and if the tax commission takes action
under such article twenty-two or under such chapter nineteen with
respect to the enforcement and collection of the tax or taxes assessed
under such articles or chapter, the tax commission shall, wherever
possible, accompany such action with a similar action under similar
enforcement and collection provisions of this chapter.
(b) Any moneys collected as a result of such joint action shall be
deemed to have been collected in proportion to the amounts due, includ-
ing tax, penalties, interest and additions to tax, under article twen-
ty-two of the tax law and this city income tax.
(c) Whenever the tax commission takes any action with respect to a
deficiency of income tax under article twenty-two of the tax law or
under chapter nineteen of this title, other than the action set forth in
subdivision (a) of this section, it may in its discretion accompany such
action with a similar action under such city income tax.
§ 11-1801 Administration, collection and review. (a) Except as other-
wise provided in this chapter, any tax imposed by this chapter shall be
administered and collected by the tax commission in the same manner as
the tax imposed by article twenty-two of the tax law is administered and
collected by such commission. Whenever there is joint collection of
A. 10030 988
state and city personal income taxes, it shall be deemed that such
collections shall represent proportionately the applicable state and
city personal income taxes in determining the amount to be remitted to
the city.
(b) The tax commission, in its discretion, may require or permit any
or all persons liable for any tax imposed by this chapter to make
payments on account of estimated tax and payment of any tax, penalty or
interest to such banks, banking houses or trust companies designated by
the tax commission and to file returns with such banks, banking houses
or trust companies, as agent of the tax commission, in lieu of paying a
tax imposed by this chapter directly to the tax commission. However,
the tax commission shall designate only such banks, banking houses or
trust companies which are designated by the comptroller as depositories
of the state.
(c) Notwithstanding any other provisions of this chapter, the tax
commission may require:
(1) the filing of any or all of the following:
(A) a combined return which, in addition to the return provided for in
section 11-1751 of this chapter, may also include any or both of the
returns required to be filed by a resident individual of New York state
pursuant to the provisions of section six hundred fifty-one of the tax
law and which may be required to be filed by such individual pursuant to
chapter nineteen of this title and
(B) a combined employer's return which, in addition to the employer's
return provided for by this chapter, may also include any or both of the
employer's returns required to be filed by the same employer pursuant to
the provisions of section six hundred seventy-four of such law and
required to be filed by such employer pursuant to such chapter nineteen
of this title and
(2) where a combined return or employer's return is required, and with
respect to the payment of estimated tax, the tax commission may also
require the payment to it of a single amount which shall equal the total
of the amounts which would have been required to be paid with the
returns or employer's returns or in payment of estimated tax pursuant to
the provisions of article twenty-two of the tax law, and the provisions
of this chapter as if no combined return or employer's return were
required.
§ 11-1802 Construction. This chapter shall be construed and enforced
in conformity with article thirty of the tax law, as added to such law
by chapter eight hundred eighty-one of the laws of nineteen hundred
seventy-five, pursuant to which article it is enacted.
CHAPTER 19
EARNINGS TAX ON NONRESIDENTS
SUBCHAPTER 1
GENERAL
§ 11-1901 Meaning of terms. As used in this chapter, the following
terms shall mean and include:
(a) "Commissioner" means the commissioner of finance of the city
except that with respect to taxes imposed for any taxable year beginning
on or after January first, nineteen hundred seventy-six, such term shall
mean state tax commission.
(b) "Payroll period" and "employer" mean the same as payroll period
and employer as defined in subsections (b) and (d) of section thirty-
four hundred one of the internal revenue code, and "employee" shall also
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include all those included as employees in subsection (c) of such
section of such code.
(c) "Commissioner of finance" means the commissioner of finance of the
city.
(d) "This state" means the state of New York.
(e) "Wages" means wages as defined in subsection (a) of section thir-
ty-four hundred one of the internal revenue code, except that (1) wages
shall not include payments for active service as a member of the armed
forces of the United States and shall not include, in the case of a
nonresident individual or partner of a partnership doing an insurance
business as a member of the New York insurance exchange described in
section six thousand two hundred one of the insurance law, any item of
income, gain, loss or deduction of such business which is such individ-
ual's distributive or pro rata share for federal income tax purposes or
which such individual is required to take into account separately for
federal income tax purposes, and (2) wages shall include (i) the amount
of member or employee contributions to a retirement system or pension
fund picked up by the employer pursuant to subdivision f of section five
hundred seventeen or subdivision d of section six hundred thirteen of
the retirement and social security law or section 13-225.1, 13-327.1,
13-125.1, 13-125.2 or 13-521.1 of title thirteen of the code of the
preceding municipality or subdivision nineteen of section twenty-five
hundred seventy-five of the education law, (ii) the amount deducted or
deferred from an employee's salary under a flexible benefits program
established pursuant to section twenty-three of the general municipal
law or section twelve hundred ten-a of the public authorities law, (iii)
the amount by which an employee's salary is reduced pursuant to the
provisions of subdivision b of section 12-126.1 and subdivision b of
section 12-126.2 of title twelve of the code of the preceding munici-
pality, and (iv) the amount of member or employee contributions to a
retirement system or pension fund picked up or paid by the employer for
members of the Manhattan and Bronx surface transportation authority
pension plan and treated as employer contributions in determining income
tax treatment under subdivision (h) of section four hundred fourteen of
the Internal Revenue Code.
(f) "Net earnings from self-employment" means the same as net earnings
from self-employment as defined in subsection (a) of section fourteen
hundred two of the internal revenue code, except that the deduction for
wages and salaries paid or incurred for the taxable year which is not
allowed pursuant to section two hundred eighty-c of such code shall be
allowed, and except that an estate or trust shall be deemed to have net
earnings from self-employment determined in the same manner as if it
were an individual subject to the tax on self-employment income imposed
by section fourteen hundred one of the internal revenue code diminished
by: (1) the amount of any deduction allowed by subsection (c) of
section six hundred forty-two of the internal revenue code and (2) the
deductions allowed by sections six hundred fifty-one and six hundred
sixty-one of such code to the extent that they represent distributions
or payments to a resident of the city. However, "trade or business" as
used in subsection (a) of section fourteen hundred two of such code
shall mean the same as trade or business as defined in subsection (c) of
section fourteen hundred two of such code, except that paragraphs four,
five and six of such subsection shall not apply in determining net earn-
ings from self-employment taxable under this chapter. Provided, however,
in the case of a nonresident individual or partner of a partnership
doing an insurance business described in section six thousand two
A. 10030 990
hundred one of the insurance law, any item of income, gain, loss or
deduction of such business which is the individual's distributive or pro
rata share for federal income tax purposes or which the individual is
required to take into account separately for federal income tax purposes
shall not be considered to be "net earnings from self-employment".
(g) "Taxable year" means the taxpayer's taxable year for federal
income tax purposes.
(h) Resident individual. A resident individual means an individual:
(1) who is domiciled in the city, unless (A) he or she maintains no
permanent place of abode in the city, maintains a permanent place of
abode elsewhere, and spends in the aggregate not more than thirty days
of the taxable year in the city, or (B) (i) within any period of five
hundred forty-eight consecutive days he or she is present in a foreign
country or countries for at least four hundred fifty days, and (ii)
during such period of five hundred forty-eight consecutive days he or
she is not present in the city for more than ninety days and does not
maintain a permanent place of abode in the city at which his or her
spouse, unless such spouse is legally separated, or minor children are
present for more than ninety days, and (iii) during any period of less
than twelve months which would be treated as a separate taxable period
pursuant to section 11-1919 of this chapter, and which period is
contained within such period of five hundred forty-eight consecutive
days, he or she is present in the city for a number of days which does
not exceed an amount which bears the same ratio to ninety as the number
of days contained in such period of less than twelve months bears to
five hundred forty-eight, or
(2) who is not domiciled in the city but maintains a permanent place
of abode in the city and spends in the aggregate more than one hundred
eighty-three days of the taxable year in the city, unless such individ-
ual is in active service in the armed forces of the United States.
(i) Nonresident individual. A nonresident individual means an individ-
ual who is not a resident.
(j) Resident estate or trust. A resident estate or trust means:
(1) the estate of a decedent who at his or her death was domiciled in
the city,
(2) a trust, or a portion of a trust, consisting of property trans-
ferred by will of a decedent who at his or her death was domiciled in
the city, or
(3) a trust, or portion of a trust, consisting of the property of:
(A) a person domiciled in the city at the time such property was
transferred to the trust, if such trust or portion of a trust was then
irrevocable, or if it was then revocable and has not subsequently become
irrevocable; or
(B) a person domiciled in the city at the time such trust, or portion
of a trust, became irrevocable, if it was revocable when such property
was transferred to the trust but has subsequently become irrevocable.
For the purposes of this subdivision, a trust or portion of a trust is
revocable if it is subject to a power, exercisable immediately or at any
future time, to revest title in the person whose property constitutes
such trust or portion of a trust, and a trust or portion of a trust
becomes irrevocable when the possibility that such power may be exer-
cised has been terminated.
(k) Nonresident estate or trust. A nonresident estate or trust means
an estate or trust which is not a resident.
(l) Unless a different meaning is clearly required, any terms used in
this chapter shall have the same meaning as when used in a comparable
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context in the laws of the United States relating to federal taxes but
such meaning shall be subject to the exceptions or modifications
prescribed in or pursuant to article two-E of the general city law or by
the laws of this state. Any reference in this chapter to the internal
revenue code, the internal revenue code of nineteen hundred eighty-six
or to the laws of the United States shall mean the provisions of the
internal revenue code of nineteen hundred eighty-six, unless a reference
to the internal revenue code of nineteen hundred fifty-four is clearly
intended, and amendments thereto, and other provisions of the laws of
the United States relating to federal taxes, as the same are included in
the appendix and supplement to the appendix to this chapter. The quota-
tion of such laws of the United States is intended to make them a part
of this chapter and to avoid constitutional uncertainties which might
result if such laws were merely incorporated by reference. The quota-
tion of a provision of the federal internal revenue code or of any other
law of the United States shall not necessarily mean that it is applica-
ble to or has relevance to this chapter.
(m) With respect to any taxable year beginning in nineteen hundred
seventy, until and including the thirty-first day of December, nineteen
hundred seventy-one, "administrator" shall be read as "state tax commis-
sion"; "administrative agencies of the city" shall be read as "adminis-
trative agencies of the state"; "depositories or financial agents of the
city" shall be read as "depositories or financial agents of the state";
"officers or employees of the department of finance of the city" shall
be read as "officers or employees of the state department of taxation
and finance"; in sections 11-1934, 11-1936, 11-1939, and 11-1942 of this
chapter "city" shall be read as "state"; "corporation counsel or other
appropriate officer of the city" or "corporation counsel of the city"
shall be read as "state attorney general"; and the words "it" or "its"
shall apply instead of the pronouns used where the reference is to tax
commission. Provided, however, with respect to declarations of estimated
tax and payments of such tax and the withholding tax requirements, until
and including the thirty-first day of December, nineteen hundred seven-
ty-one, any such terms shall be so read with respect to any taxable year
or other period beginning in nineteen hundred seventy-one.
(n) The term "partnership" shall include, unless a different meaning
is clearly required, a subchapter K limited liability company. The term
"subchapter K limited liability company" shall mean a limited liability
company classified as a partnership for federal income tax purposes. The
term "limited liability company" means a domestic limited liability
company or a foreign limited liability company, as defined in section
one hundred two of the limited liability company law, a limited liabil-
ity investment company formed pursuant to section five hundred seven of
the banking law, or a limited liability trust company formed pursuant to
section one hundred two-a of the banking law.
§ 11-1902 Persons subject to tax. (a) Imposition of tax. (1) A tax is
hereby imposed for each taxable year ending on or after July first,
nineteen hundred sixty-six and on or before December thirty-first, nine-
teen hundred seventy and for each taxable year beginning after December
thirty-first, nineteen hundred ninety-nine, on the wages earned and net
earnings from self-employment, within the city, of every nonresident
individual, estate and trust which shall comprise: (i) A tax at the
rate of one-fourth of one percent on all wages.
(ii) A tax at the rate of three-eighths of one percent on all net
earnings from self-employment.
A. 10030 992
(2) For each taxable year beginning on or after January first, nine-
teen hundred seventy-one and ending on or before December thirty-first,
nineteen hundred ninety-nine, a tax is hereby imposed on the wages
earned, and net earnings from self-employment, within the city, of every
nonresident individual, estate and trust which shall comprise: (i) A
tax at the rate of forty-five hundredths of one percent on all wages.
(ii) A tax at the rate of sixty-five hundredths of one percent on all
net earnings from self-employment.
(3) For each taxable year beginning in nineteen hundred seventy and
ending in nineteen hundred seventy-one, two tentative taxes shall be
computed, the first as provided in paragraph one of this subdivision and
the second as provided in paragraph two of this subdivision, and the tax
for each such year shall be the sum of that proportion of each tentative
tax which the number of days in nineteen hundred seventy and the number
of days in nineteen hundred seventy-one, respectively, bears to the
number of days in the entire taxable year.
(4) For each taxable year beginning in nineteen hundred ninety-nine
and ending in two thousand, two tentative taxes shall be computed, the
first as provided in paragraph two of this subdivision and the second as
provided in paragraph one of this subdivision, and the tax for each such
year shall be the sum of that proportion of each tentative tax which the
number of days in nineteen hundred ninety-nine and the number of days in
two thousand, respectively, bears to the number of days in the entire
taxable year.
(b) Exclusion. (1) In computing the amount of wages and net earnings
from self-employment taxable under subdivision (a) of this section,
there shall be allowed an exclusion against the total of wages and net
earnings from self-employment in accordance with the following table:
Total of wages and net earnings
from self-employment Exclusion allowable
Not over $10,000 $3,000
Over $10,000 but not over $20,000 $2,000
Over $20,000 but not over $30,000 $1,000
Over $30,000 None
(2) The exclusion allowable shall be applied pro rata against wages
and net earnings from self-employment.
(3) For taxable periods of less than one year, the exclusion allowable
shall be prorated pursuant to regulations of the commissioner.
(c) Limitation. In no event shall a taxpayer be subject to the tax
under this chapter in an amount greater than such taxpayer would be
required to pay if such taxpayer were a resident of the city and subject
to a tax on personal income of residents of the city adopted by the city
pursuant to authority granted by the general city law or the tax law.
§ 11-1903 Taxable years to which tax imposed by this chapter applies;
tax for taxable years beginning prior to and ending after July first,
nineteen hundred sixty-six. (a) General. The tax imposed by this chapter
is imposed for each taxable year beginning with taxable years ending on
or after July first, nineteen hundred sixty-six.
(b) Alternate methods for determining tax for taxable years ending on
or after July first, nineteen hundred sixty-six. (1) The tax for any
taxable year ending on or after July first, nineteen hundred sixty-six
and on or before June thirtieth, nineteen hundred sixty-seven, shall be
the same part of the tax which would have been imposed had this chapter
been in effect for the entire taxable year as the number of months, or
A. 10030 993
major portions thereof, of the taxable year occurring after July first,
nineteen hundred sixty-six is of the number of months, or major portions
thereof, in the taxable year.
(2)(i) In lieu of the method of computation of tax prescribed in para-
graph one of this subdivision, if the taxpayer maintains adequate
records for any taxable year ending on or after July first, nineteen
hundred sixty-six and on or before June thirtieth, nineteen hundred
sixty-seven, the tax for such taxable year, at the election of the
taxpayer, may be computed on the basis of the wages which the taxpayer
would have reported had he or she filed a federal income tax return for
a taxable year beginning July first, nineteen hundred sixty-six, and
ending with the close of such taxable year ending on or before June
thirtieth, nineteen hundred sixty-seven, and the net earnings from self-
employment which the taxpayer would have reported for federal income tax
purposes had he or she filed a self-employment tax return for a taxable
year beginning July first, nineteen hundred sixty-six and ending with
the close of such taxable year ending on or before June thirtieth, nine-
teen hundred sixty-seven.
(ii) For purposes of this paragraph, the exclusions allowable under
section 11-1902 of this subchapter shall be reduced by a fraction, the
numerator of which is the number of months, or major portions thereof,
of the taxable year occurring before July first, nineteen hundred
sixty-six, and the denominator of which is the number of months, or
major portions thereof, in the taxable year. Except as provided in this
paragraph, the tax for such period ending on or before June thirtieth,
nineteen hundred sixty-seven, shall be computed in accordance with the
other provisions of this chapter.
§ 11-1904 Allocation to the city. (a) General. If net earnings from
self-employment are derived from services performed, or from sources,
within and without the city, there shall be allocated to the city a fair
and equitable portion of such earnings.
(b) Allocation of net earnings from self-employment.
(1) Place of business. If a taxpayer has no regular place of business
outside the city all of his or her net earnings from self-employment
shall be allocated to the city.
(2) Allocation by taxpayer's books. The portion of net earnings from
self-employment allocable to the city may be determined from the books
and records of a taxpayer's trade or business, if the methods used in
keeping such books and the accuracy thereof are approved by the commis-
sioner as fairly and equitably reflecting net earnings from self-employ-
ment within the city.
(3) Allocation by formula. If paragraph two of this subdivision does
not apply to the taxpayer, the portion of net earnings from self-employ-
ment allocable to the city shall be determined by multiplying (A) net
earnings from self-employment within and without the city, by (B) the
average of the following three percentages:
(i) Property percentage. The percentage computed by dividing (A) the
average of the value, at the beginning and end of the taxable year, of
real and tangible personal property connected with net earnings from
self-employment and located within the city, by (B) the average of the
value, at the beginning and end of the taxable year, of all real and
tangible personal property connected with the net earnings from self-em-
ployment and located both within and without the city. For this
purpose, real property shall include real property whether owned or
rented.
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(ii) Payroll percentage. The percentage computed by dividing (A) the
total wages, salaries and other personal service compensation paid or
incurred during the taxable year to employees in connection with the net
earnings from self-employment derived from a trade or business carried
on within the city, by (B) the total of all wages, salaries and other
personal service compensation paid or incurred during the taxable year
to employees in connection with the net earnings from self-employment
derived from a trade or business carried on both within and without the
city.
(iii) Gross income percentage. The percentage computed by dividing
(A) the gross sales or charges for services performed by or through an
agency located within the city, by (B) the total of all gross sales or
charges for services performed within and without the city. The sales
or charges to be allocated to the city shall include all sales negoti-
ated or consummated, and charges for services performed, by an employee,
agent, agency or independent contractor chiefly situated at, connected
by contract or otherwise with, or sent out from, offices or other agen-
cies of the trade or business from which a taxpayer is deriving net
earnings from self-employment, situated within the city.
(c) Other allocation methods. The portion of net earnings from self-
employment allocable to the city shall be determined in accordance with
rules and regulations of the commissioner if it shall appear to the
commissioner that the net earnings from self-employment are not fairly
and equitably reflected under the provisions of subdivision (b) of this
section.
(d) Special rules for real estate. Income and deductions from the
rental of real property and gain and loss from the sale, exchange or
other disposition of real property, shall not be subject to allocation
under subdivision (b) or (c) of this section, but shall be considered as
entirely derived from or connected with the place in which such property
is located.
§ 11-1905 Accounting periods and methods. (a) Accounting periods. A
taxpayer's taxable year under this chapter shall be the same as his or
her taxable year for federal income tax purposes.
(b) Change of accounting periods. If a taxpayer's taxable year is
changed for federal income tax purposes, his or her taxable year for
purposes of this chapter shall be similarly changed. If a taxable peri-
od of less than twelve months results from a change of taxable year, the
exclusion allowable under section 11-1902 of this subchapter shall be
prorated under regulations of the commissioner.
(c) Accounting methods. A taxpayer's method of accounting under this
chapter shall be the same as his or her method of accounting for federal
income tax purposes. In the absence of any method of accounting for
federal income tax purposes, net earnings from self-employment within
the city shall be computed under such method as in the opinion of the
commissioner clearly reflects net earnings from self-employment within
the city.
(d) Change of accounting methods. (1) If a taxpayer's method of
accounting is changed for federal income tax purposes, his or her method
of accounting for purposes of this chapter shall be similarly changed.
(2) If a taxpayer's method of accounting is changed, other than from
an accrual to an installment method, any additional tax which results
from adjustments determined to be necessary solely by reason of the
change shall not be greater than if such adjustments were ratably allo-
cated and included for the taxable year of the change and the preceding
taxable years, beginning after July first, nineteen hundred sixty-six,
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not in excess of two, during which the taxpayer used the method of
accounting from which the change is made.
(3) If a taxpayer's method of accounting is changed from an accrual to
an installment method, any additional tax for the year of such change of
method and for any subsequent year which is attributable to the receipt
of installment payments properly accrued in a prior year, shall be
reduced by the portion of tax for any prior taxable year attributable to
the accrual of such installment payments, in accordance with regulations
of the commissioner.
§ 11-1908 Withholding of tax on wages. On or after the first payroll
period beginning August twenty-seventh, nineteen hundred sixty-six,
every employer maintaining an office or transacting business within this
state and making payment of any wages taxable under this chapter shall
deduct and withhold from such wages for each payroll period a tax
computed in such manner as to result, so far as practicable, in with-
holding from the employee's wages during each calendar year an amount
substantially equivalent to the tax reasonably estimated to be due from
the employee under this chapter. The method of determining the amount to
be withheld shall be prescribed by regulations of the commissioner.
§ 11-1909 Withholding of tax on wages for taxable periods commencing
on or after January first, nineteen hundred seventy-six. The provisions
contained in sections 11-1908, 11-1910, 11-1911, 11-1912, 11-1913 and
11-1914 of this subchapter shall not be applicable to taxes imposed for
taxable periods commencing on or after January first, nineteen hundred
seventy-six provided however, with respect to such periods, the
provisions contained in part V of article twenty-two of the tax law
shall be applicable with the same force and effect as if those
provisions had been incorporated in full in this section except that the
term "aggregate amount" contained in paragraphs one, two and three of
subsection (a) of section six hundred seventy-four of the tax law shall
mean the aggregate amounts of New York state personal income tax, city
earnings tax on nonresidents and city personal income tax on residents
authorized pursuant to article thirty of the tax law required to be
deducted and withheld and provided, however, that the provisions of such
paragraphs shall not be applicable to employer's returns required to be
filed with respect to taxes required to be deducted and withheld during
the calendar year nineteen hundred seventy-six, but such returns shall
be required to be filed with the tax commission at the times and in the
manner provided for in subdivision (a) of section 11-1912 of this
subchapter, except the term "commission" in such subdivision shall be
read as "tax commission." This section shall not apply to payments by
the United States for service in the armed forces of the United States
so long as the right to require deduction and withholding of tax from
such payments is prohibited by the laws of the United States. Service in
the armed forces of the United States shall have the same meaning as
when used in a comparable context in the laws of the United States
relating to withholding of city income taxes.
§ 11-1910 Information statement for employee. Every employer required
to deduct and withhold tax under this chapter from the wages of an
employee, shall furnish to each such employee in respect of the wages
paid by such employer to such employee during the calendar year on or
before February fifteenth of the succeeding year, or, if his or her
employment is terminated before the close of such calendar year, within
thirty days from the date on which the last payment of the wages is
made, a written statement as prescribed by the commissioner showing the
total amount of wages paid by the employer to the employee, the amount
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of wages paid for services performed within the city, the amount
deducted and withheld as tax, and such other information as the commis-
sioner may prescribe. The written statement required under this
section may be furnished to such employee in an electronic format.
§ 11-1911 Credit for tax withheld. Wages upon which tax is required to
be withheld shall be taxable under this chapter as if no withholding
were required, but any amount of tax actually deducted and withheld
under this chapter in any calendar year shall be deemed to have been
paid on behalf of the employee from whom withheld, and such employee
shall be credited with having paid that amount of tax in such calendar
year. For a taxable year of less than twelve months, the credit shall be
made under regulations of the commissioner.
§ 11-1912 Employer's return and payment of withheld taxes. (a) Gener-
al. On or after the first payroll period beginning August twenty-sev-
enth, nineteen hundred sixty-six, every employer required to deduct and
withhold tax under this chapter shall, for each calendar month, on or
before the fifteenth day of the month following the close of such calen-
dar month file a withholding return as prescribed by the commissioner
and pay over to the commissioner or to the depository designated by the
commissioner, the taxes so required to be deducted and withheld, except
that for the month of December in any year the returns shall be filed
and the taxes paid on or before January thirty-first of the succeeding
year. Where the aggregate amount required to be deducted and withheld
by any employer under this chapter and under chapter seventeen of this
title is less than twenty-five dollars in a calendar month and the
aggregate of such taxes for the semi-annual period ending on June thir-
tieth and December thirty-first can reasonably be expected to be less
than one hundred fifty dollars, the commissioner may, by regulation,
permit an employer to file a return on or before July thirty-first for
the semi-annual period ending on June thirtieth and on or before January
thirty-first for the semi-annual period ending on December thirty-first.
The commissioner may, if he or she believes such action necessary for
the protection of the revenues, require any employer to make a return
and pay to him or her the tax deducted and withheld at any time, or from
time to time. Where the amount of wages paid by an employer is not
sufficient under this chapter and under chapter seventeen of this title
to require the withholding of tax from the wages of any of his or her
employees, the commissioner may, by regulation, permit such employer to
file an annual return on or before February twenty-eighth of the follow-
ing calendar year.
(b) Combined returns. The commissioner may by regulation provide for
the filing of one return which shall include the return required to be
filed under this section, together with the employer's return required
to be filed under chapter seventeen of this title.
(c) Deposit in trust for city. Whenever any employer fails to collect,
truthfully account for, pay over the tax, or make returns of the tax as
required in this section, the commissioner may serve a notice requiring
such employer to collect the taxes which become collectible after
service of such notice, to deposit such taxes in a bank approved by the
commissioner, in a separate account, in trust for the city and payable
to the commissioner, and to keep the amount of such tax in such account
until payment over to the commissioner. Such notice shall remain in
effect until a notice of cancellation is served by the commissioner.
§ 11-1913 Employer's liability for withheld taxes. Every employer
required to deduct and withhold the tax under this chapter is hereby
made liable for such tax. For purposes of assessment and collection,
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any amount required to be withheld and paid over to the commissioner,
and any additions to tax, penalties and interest with respect thereto
shall be considered the tax of the employer. Any amount of tax actually
deducted and withheld under this chapter shall be held to be a special
fund in trust for the city. No employee shall have any right of action
against his or her employer in respect to any monies deducted and with-
held from his or her wages and paid over to the commissioner in compli-
ance or in intended compliance with this chapter.
§ 11-1914 Employer's failure to withhold. If an employer fails to
deduct and withhold the tax, as required, and thereafter the tax against
which such tax may be credited is paid, the tax so required to be
deducted and withheld shall not be collected from the employer, but the
employer shall not be relieved from liability for any penalties, inter-
est or additions to the tax otherwise applicable in respect of such
failure to deduct and withhold.
§ 11-1915 Combined returns, employer's returns and payments. The
state tax commission may require:
(1) The filing of any or all of the following:
(A) A combined return which in addition to the return provided for in
this chapter may also include returns required to be filed under a law
authorized by article thirty of the tax law and under article twenty-two
of the tax law.
(B) A combined employer's return which in addition to the employer's
return provided for by this chapter may also include employer's returns
required to be filed under a law authorized by article thirty of the tax
law and under article twenty-two of the tax law.
(2) Where a combined return or employer's return is required, and
with respect to the payment of estimated tax, the state tax commission
may also require payment of a single amount which shall be the total of
the amounts, total taxes less any credits or refunds, required to be
paid with the returns or employer's returns or in payment of estimated
tax pursuant to the provisions of this chapter, a law authorized by
article thirty of the tax law and pursuant to the provisions of article
twenty-two of the tax law.
SUBCHAPTER 2
RETURNS AND PAYMENT OF TAX
§ 11-1916 Returns and payment of tax. (a) General. On or before the
fifteenth day of the fourth month following the close of the taxable
year, every person subject to the tax shall make and file a return and
any balance of the tax shown due on the face of such return shall be
paid therewith. The commissioner may, by regulation, provide for the
filing of returns and payment of the tax at such other times as he or
she deems necessary for the proper enforcement of this chapter. The
commissioner may also provide by regulation that any return otherwise
required to be made and filed under this chapter by any nonresident
individual need not be made and filed if such nonresident individual
had, during the taxable year to which the return would relate, no net
earnings from self-employment within the city. Any regulation allowing
such waiver of return may provide for additional limitations on and
conditions and prerequisites to the privilege of not filing a return.
(b) Decedents. The return for any deceased individual shall be made
and filed by his or her executor, administrator, or other person charged
with his or her property. If a final return of a decedent is for a
fractional part of a year, the due date of such return shall be the
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fifteenth day of the fourth month following the close of the twelve-
month period which began with the first day of such fractional part of
the year.
(c) Individuals under a disability. The return for an individual who
is unable to make a return by reason of minority or other disability
shall be made and filed by his or her guardian, committee, fiduciary or
other person charged with the care of his or her person or property,
other than a receiver in possession of only a part of his or her proper-
ty, or by his or her duly authorized agent.
(d) Estates and trust. The return for an estate or trust shall be made
and filed by the fiduciary.
(e) Joint fiduciaries. If two or more fiduciaries are acting jointly,
the return may be made by any one of them.
(f) Cross reference. For provisions as to information returns by part-
nerships, employers and other persons, see section 11-1921 of this
subchapter.
§ 11-1917 Time and place for filing returns and paying tax. A person
required to make and file a return under this chapter shall, without
assessment, notice or demand, pay any tax due thereon to the commission-
er on or before the date fixed for filing such return, determined with-
out regard to any extension of time for filing the return. The commis-
sioner shall prescribe by regulation the place for filing any return,
statement, or other document required pursuant to this chapter and for
payment of any tax.
§ 11-1918 Signing of returns and other documents. (a) General. Any
return, statement or other document required to be made pursuant to this
chapter shall be signed in accordance with regulations or instructions
prescribed by the commissioner. The fact that an individual's name is
signed to a return, statement, or other document, shall be prima facie
evidence for all purposes that the return, statement or other document
was actually signed by such individual.
(b) Partnerships. Any return, statement or other document required of
a partnership shall be signed by one or more partners. The fact that a
partner's name is signed to a return, statement, or other document,
shall be prima facie evidence for all purposes that such partner is
authorized to sign on behalf of the partnership.
(c) Certifications. The making or filing of any return, statement or
other document or copy thereof required to be made or filed pursuant to
this chapter, including a copy of a federal return, shall constitute a
certification by the person making or filing such return, statement or
other document or copy thereof that the statements contained therein are
true and that any copy filed is a true copy.
§ 11-1919 Change of residence status during year. (a) General. If an
individual changes his or her status during his or her taxable year from
resident to nonresident, or from nonresident to resident, he or she
shall file a return as a nonresident for the portion of the year during
which he or she is a nonresident if he or she is subject to the tax
imposed by this chapter or, if not subject to such tax, an information
return for the portion of the year during which he or she is a nonresi-
dent, subject to such exceptions as the commissioner may prescribe by
regulation. Such information return shall be due at the same time as
the return required by chapter seventeen of this title for the portion
of the year during which such individual is a resident.
(b) City taxable wages and net earnings from self-employment for
portion of year individual is a nonresident. The city taxable wages and
net earnings from self-employment for the portion of the year during
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which he or she is a nonresident shall be determined, except as provided
in subdivision (c) of this section, under this chapter as if his or her
taxable year for federal income tax purposes were limited to the period
of his or her nonresident status.
(c) Special accruals. (1) If an individual changes his or her status
from resident to nonresident, he or she shall, regardless of his or her
method of accounting, accrue for the portion of the taxable year prior
to such change of status any items of income, gain, loss or deduction
accruing prior to the change of status, if not otherwise properly inclu-
dible, whether or not because of an election to report on an installment
basis, or allowable for city earnings tax purposes for such portion of
the taxable year for a prior taxable year. The amounts of such accrued
items shall be determined as if such accrued items were includible or
allowable for federal self-employment tax purposes.
(2) If an individual changes his or her status from nonresident to
resident, he or she shall, regardless of his or her method of account-
ing, accrue for the portion of the taxable year prior to such change of
status any items of income, gain, loss or deduction accruing prior to
the change of status, if not otherwise properly includible, whether or
not because of an election to report on an installment basis, or allow-
able for federal self-employment tax purposes for such portion of the
taxable year or for prior taxable year. The amounts of such accrued
items shall be determined if such accrued items were includible or
allowable for federal self-employment tax purposes.
(3) No item of income, gain, loss or deduction which is accrued under
this subdivision shall be taken into account in determining city
adjusted wages earned, or net earnings from self-employment, within the
city, for any subsequent taxable period.
(4) Where an individual changes his or her status from resident to
nonresident, the accruals under this subdivision shall not be required
if the individual files with the commissioner a bond or other security
acceptable to the commissioner, conditioned upon the inclusion of
amounts accruable under this subdivision in city adjusted gross income
under chapter seventeen of this title for one or more subsequent taxable
years as if the individual has not changed his or her resident status.
In such event, the tax under this chapter shall not apply to such
amounts.
(d) Prorations. Where an individual changes his or her status during
his or her taxable year from resident to nonresident or from nonresident
to resident, the exclusion allowable under subdivision (b) of section
11-1902 of this chapter shall be prorated, under regulations of the
commissioner, to reflect the portions of the entire taxable year during
which the individual was a resident and a nonresident.
§ 11-1920 Extension of time. (a) General. The commissioner may grant a
reasonable extension of time for payment of tax or estimated tax, or any
installment, or for filing any return, statement, or other document
required pursuant to this chapter, on such terms and conditions as he or
she may require. Except for a taxpayer who is outside the United States
or who intends to claim nonresident status pursuant to subparagraphs
(i), (ii) and (iii) of paragraph one of subdivision (h) of section
11-1901 of this chapter, no such extension for filing any return, state-
ment or other document, shall exceed six months.
(b) Furnishing of security. If any extension of time is granted for
payment of any amount of tax, the commissioner may require the taxpayer
to furnish a bond or other security in an amount not exceeding twice the
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amount for which the extension of time for payment is granted, on such
terms and conditions as the commissioner may require.
§ 11-1921 Requirements concerning returns, notices, records and state-
ments. (a) General. The commissioner may prescribe regulations as to the
keeping of records, the content and form of returns and statements, and
the filing of copies of federal income tax returns and determinations.
The commissioner may require any person, by regulation or notice served
upon such person, to make such returns, render such statements, or keep
such records, as the commissioner may deem sufficient to show whether or
not such person is liable under this chapter for tax or for collection
of tax.
(b) Partnerships. Every partnership doing business in the city and
having no partners who are residents shall make a return for the taxable
year setting forth all items of income, gain, loss and deduction and
such other pertinent information as the commissioner may by regulations
and instructions prescribe. Such return shall be filed on or before the
fifteenth day of the fourth month following the close of each taxable
year. For purposes of this subdivision, "taxable year" means year or
period which would be a taxable year of the partnership if it were
subject to tax under this chapter.
(c) Information at source. The commissioner may prescribe regulations
and instructions requiring returns of information to be made and filed
on or before February twenty-eighth of each year as to the payment or
crediting in any calendar year of amounts of six hundred dollars or more
to any taxpayer under this chapter. Such returns may be required of any
person, including lessees or mortgagors of real or personal property,
fiduciaries, employers, and all officers and employees of this state, or
any municipal corporation or political subdivision of this state, having
the control, receipt, custody, disposal or payment of interest, rents,
salaries, wages, premiums, annuities, compensations, remunerations,
emoluments or other fixed or determinable gains, profits or income,
except interest coupons payable to bearer. A duplicate of the statement
as to tax withheld on wages, required to be furnished by an employer to
an employee, shall constitute the return of information required to be
made under this section with respect to such wages.
(d) Notice of qualification as receiver, etc. Every receiver, trustee
in bankruptcy, assignee for benefit of creditors, or other like fiduci-
ary shall give notice of his or her qualifications as such to the
commissioner, as may be required by regulation.
§ 11-1922 Report of change in federal or New York state taxable
income. If the amount of a taxpayer's federal or New York state taxable
income or self-employment income reported on his or her federal or New
York state tax return for any taxable year is changed or corrected by
the United States internal revenue service or the New York state commis-
sioner of taxation and finance or other competent authority, or as the
result of a renegotiation of a contract or subcontract with the United
States or New York state or if a taxpayer, pursuant to subsection (d) of
section six thousand two hundred thirteen of the internal revenue code,
executes a notice of waiver of the restrictions provided in subsection
(a) of said section or if a taxpayer, pursuant to subdivision (f) of
section six hundred eighty-one of the tax law executes a notice of waiv-
er of the restrictions provided in subdivision (c) of said section, or
if any tax on self-employment income in addition to that shown on his or
her return is assessed, the taxpayer shall report such change or
correction in federal or New York state taxable income or such execution
of such notice of waiver or such assessment and the changes or
A. 10030 1001
corrections of his or her federal or New York state taxable income or
self-employment income on which it is based, within ninety days after
the final determination of such change, correction, or renegotiation, or
such execution of such notice of waiver or the making of such assessment
as otherwise required by the commissioner, and shall concede the accura-
cy of such determination or state wherein it is erroneous. Any taxpayer
filing an amended federal or New York state income or self-employment
income tax return shall also file within ninety days thereafter an
amended return under this chapter, and shall give such information as
the commissioner may require. The commissioner may by regulation
prescribe such exceptions to the requirements of this section as he or
she deems appropriate. For purposes of this section, (i) the term
"taxpayer" shall include a partnership having any income derived from
city sources, and (ii) the term "federal income tax return" shall
include the returns of income required under section six thousand thir-
ty-one of the internal revenue code. Reports made under this section by
a partnership shall indicate the portion of the change in each item of
income, gain, loss or deduction allocable to each partner and shall set
forth such identifying information with respect to such partner as may
be prescribed by the commissioner.
SUBCHAPTER 3
PROCEDURE AND ADMINISTRATION
§ 11-1923 Notice of deficiency. (a) General. If upon examination of a
taxpayer's return under this chapter the commissioner determines that
there is a deficiency of tax, he or she may mail a notice of deficiency
to the taxpayer. If a taxpayer fails to file a return required under
this chapter, the commissioner is authorized to estimate the taxpayer's
wages and net earnings from self-employment or the wages from which
taxes are required to be deducted and withheld and the tax thereon, from
any information in the commissioner's possession, and to mail a notice
of deficiency to the taxpayer. A notice of deficiency shall be mailed
by certified or registered mail to the taxpayer at such taxpayer's last
known address in or out of the city. If the taxpayer is deceased or
under a legal disability, a notice of deficiency may be mailed to his or
her last known address in or out of the city, unless the commissioner
has received notice of the existence of a fiduciary relationship with
respect to the taxpayer.
(b) Notice of deficiency as assessment. The notice of deficiency shall
be an assessment of the amount of tax specified in such notice, together
with the interest, additions to tax and penalties stated in such notice.
(c) Restrictions on collection and levy. No notice and demand for
payment of an assessment of a deficiency in tax made by a notice of
deficiency and no levy or proceeding in court for its collection shall
be made, begun or prosecuted, except as otherwise provided in section
11-1937 of this subchapter, until the expiration of the time for filing
a petition contesting such notice, nor, if a petition with respect to
the taxable year has been filed with the commissioner, until the deci-
sion of the commissioner has become final. After a petition has been
filed the restriction provided herein shall not apply to such part of
the deficiency as is not contested by the petition. For exception in
the case of judicial review of the decision of the commissioner, see
subdivision (c) of section 11-1932 of this subchapter.
(d) Exceptions for mathematical errors. If a mathematical error
appears on a return, including an overstatement of the credit for tax
A. 10030 1002
withheld at the source or of the amount paid as estimated tax, the
commissioner shall notify the taxpayer that an amount of tax in excess
of that shown upon the return is due, and that such excess has been
assessed. Such notice shall not be considered as a notice of deficiency
for the purposes of this section, subdivision (f) of section 11-1929 of
this subchapter, limiting credits or refunds after petition to the
commissioner, or subdivision (b) of section 11-1931 of this subchapter,
authorizing the filing of a petition with the commissioner based on a
notice of deficiency, nor shall collection of such assessment be prohib-
ited by the provisions of subdivision (c) of this section.
(e) Exception where change in federal or New York state taxable income
is not reported (1) If the taxpayer fails to comply with section 11-1922
of this chapter in not reporting a change or correction increasing his
or her federal or New York state taxable income or self-employment
income as reported on such taxpayer's federal or New York state tax
return or in not reporting a change or correction which is treated in
the same manner as if it were a deficiency for federal or New York state
tax purposes or in not filing an amended return or in not reporting the
execution of a notice of waiver or an assessment described in such
section, instead of the mode and time of assessment and collection
provided for in subdivision (b) of this section, the commissioner may
assess a deficiency based upon such changed or corrected federal or New
York state taxable income or self-employment income by mailing to the
taxpayer a notice of additional tax due specifying the amount of the
deficiency, and such deficiency, together with the interest, additions
to tax and penalties stated in such notice, shall be deemed assessed and
subject to collection procedures on the date such notice is mailed
unless within thirty days after the mailing of such notice a report of
the federal or New York state change or correction or an amended return,
where such return was required by section 11-1922 of this chapter is
filed accompanied by a statement showing wherein such federal or New
York state determination of such notice of additional tax due are erro-
neous.
(2) Such notice shall not be considered as a notice of deficiency for
the purposes of this section, subdivision (f) of section 11-1929 of this
subchapter, limiting credits or refunds after petition to the commis-
sioner, or subdivision (b) of section 11-1931 of this subchapter,
authorizing the filing of a petition with the commissioner based on a
notice of deficiency, nor shall the collection of such assessment be
prohibited by the provisions of subdivision (c) of this section.
If the taxpayer is deceased or under a legal disability, a notice of
additional tax due may be mailed to his or her last known address in or
out of the city, unless the commissioner has received notice of the
existence of a fiduciary relationship with respect to the taxpayer.
(f) Waiver of restrictions. The taxpayer shall at any time have the
right to waive the mailing of a notice of deficiency or restriction on
collection of the whole or any part of the deficiency, or both, by a
signed notice in writing filed with the commissioner.
(g) Deficiency defined. For purposes of this chapter, a deficiency
means the amount of the tax imposed by this chapter, less (1) the amount
shown as the tax upon the taxpayer's return, whether the return was made
or the tax computed by the taxpayer or by the commissioner, and less,
(2) the amounts previously assessed, or collected without assessment, as
a deficiency and plus (3) the amount of any rebates. For the purpose of
this definition, the tax imposed by this chapter and the tax shown on
the return shall both be determined without regard to payments on
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account of estimated tax or the credit for withholding tax; and a rebate
means so much of an abatement, refund or other repayment, whether or not
erroneous, made on the ground that the amounts entering into the defi-
nition of a deficiency showed a balance in favor of the taxpayer.
§ 11-1924 Assessment. (a) Assessment date. The amount of tax which a
return shows to be due, or the amount of tax which a return would have
shown to be due but for a mathematical error, shall be deemed to be
assessed on the date of filing of the return, including any amended
return showing an increase of tax. In the case of a return properly
filed without computation of tax, the tax computed by the commissioner
shall be deemed to be assessed on the date on which payment is due. If
a notice of deficiency has been mailed, the amount of the deficiency
shall be deemed to be assessed on the date on which it is mailed. If an
amended return or report filed pursuant to section 11-1922 of this chap-
ter concedes the accuracy of a federal or New York state adjustment,
change or correction, any deficiency in tax under this chapter resulting
therefrom shall be deemed to be assessed on the date of filing such
report or amended return, and such assessment shall be timely notwith-
standing section 11-1925 of this subchapter. If a notice of additional
tax due, as prescribed in subdivision (e) of section 11-1923 of this
subchapter, has been mailed, the amount of the deficiency shall be
deemed to be assessed on the date specified in such subdivision unless
within thirty days after the mailing of such notice a report of the
federal or New York state change or correction or an amended return,
where such return was required by section 11-1922 of this chapter, is
filed accompanied by a statement showing wherein such federal or New
York state determination and such notice of additional tax due are erro-
neous. Any amount paid as a tax or in respect of a tax, other than
amounts withheld at the source or paid as estimated income tax, shall be
deemed to be assessed upon the date of receipt of payment, notwithstand-
ing any other provisions.
(b) Other assessment powers. If the mode or time for the assessment
of any tax under this chapter, including interest, additions to tax and
assessable penalties, is not otherwise provided for, the commissioner
may establish the same by regulations.
(d) Supplemental assessment. The commissioner may, at any time within
the period prescribed for assessment, make a supplemental assessment,
subject to the provisions of section 11-1923 of this subchapter where
applicable, whenever it is ascertained that any assessment is imperfect
or incomplete in any material respect.
(e) Cross reference. For assessment in case of jeopardy, see section
11-1937 of this subchapter.
§ 11-1925 Limitations on assessment. (a) General. Except as otherwise
provided in this section, any tax under this chapter shall be assessed
within three years after the return was filed, whether or not such
return was filed on or after the date prescribed.
(b) Exceptions. (1) Assessment at any time. The tax may be assessed at
any time if:
(A) no return is filed,
(B) a false or fraudulent return is filed with intent to evade tax, or
(C) the taxpayer fails to comply with section 11-1922 of this chapter
in not reporting a change or correction increasing his or her federal or
New York state taxable income or self-employment income as reported on
the taxpayer's federal or New York state tax return, or the execution of
a notice of waiver and the changes or corrections on which it is based
or in not reporting an assessment or a change or correction which is
A. 10030 1004
treated in the same manner as if it were a deficiency for federal or New
York state income tax purposes, or in not filing an amended return.
(2) Extension by agreement. Where, before the expiration of the time
prescribed in this section for the assessment of tax, both the commis-
sioner and the taxpayer have consented in writing to its assessment
after such time, the tax may be assessed at any time prior to the expi-
ration of the period agreed upon. The period so agreed upon may be
extended by subsequent agreements in writing made before the expiration
of the period previously agreed upon.
(3) Report of changed or corrected federal or New York state income.
If the taxpayer shall, pursuant to section 11-1922 of this chapter,
report a change or correction or file an amended return increasing the
taxpayer's federal or New York state taxable income or earnings from
self-employment or report an assessment or a change or correction which
is treated in the same manner as if it were a deficiency for federal or
New York state income tax purposes, the assessment, if not deemed to
have been made upon the filing of the report or amended return, may be
made at any time within two years after such report or amended return
was filed. The amount of such assessment of tax shall not exceed the
amount of the increase in city tax on earnings attributable to such
federal or New York state change or correction. The provisions of this
paragraph shall not affect the time within which or the amount for which
an assessment may otherwise be made.
(4) Recovery of erroneous refund. An erroneous refund shall be consid-
ered an underpayment of tax on the date made, and an assessment of a
deficiency arising out of an erroneous refund may be made at any time
within two years from the making of the refund, except that the assess-
ment may be made within five years from the making of the refund if it
appears that any part of the refund was induced by fraud or misrepresen-
tation of a material fact.
(5) Request for prompt assessment. If a return is required for a dece-
dent or for the decedent's estate during the period of administration,
the tax shall be assessed within eighteen months after written request
therefor, made after the return is filed, by the executor, administrator
or other person representing the estate of such decedent, but not more
than three years after the return was filed, except as otherwise
provided in this subdivision and subdivision (c) of this section.
(c) Omission of income on return. The tax may be assessed at any time
within six years after the return was filed if a taxpayer omits from a
return an amount properly includible therein which is in excess of twen-
ty-five per centum of the amount of the gross income derived by the
taxpayer from any trade or business.
For purposes of this subdivision there shall not be taken into account
any amount which is omitted in the return if such amount is disclosed in
the return, or in a statement attached to the return, in a manner
adequate to apprise the commissioner of the nature and amount of such
item.
(d) Suspension of running of period of limitation. The running of the
period of limitations on or collection of tax or other amount, or of a
transferee's liability, shall, after the mailing of a notice of defi-
ciency, be suspended for the period during which the commissioner is
prohibited under subdivision (c) of section 11-1923 of this subchapter
collecting by levy or proceeding in court.
§ 11-1926 Interest on underpayment. (a) General. If any amount of tax
is not paid on or before the last date prescribed in this chapter for
payment, interest on such amount at the appropriate rates prescribed for
A. 10030 1005
underpayments of tax under chapter seventeen of this title shall be paid
for the period from such last date to the date paid, whether or not any
extension of time for payment was granted. Interest under this subdivi-
sion shall not be paid if the amount thereof is less than one dollar.
If the time for filing a return of tax withheld by an employer is
extended, the employer shall pay interest for the period for which the
extension is granted and may not charge such interest to the employee.
(c) Exception for mathematical error. No interest shall be imposed on
any underpayment of tax due solely to mathematical error if the taxpayer
files a return within the time prescribed in this chapter, including any
extension of time, and pays the amount of underpayment within three
months after the due date of such return, as it may be extended.
(d) No interest on interest. No interest under this chapter shall be
imposed on any interest provided by this chapter.
(e) Suspension of interest on deficiencies. If a waiver of
restrictions on collection of an assessment of a deficiency has been
filed by the taxpayer, and if notice and demand by the commissioner for
payment of such assessed deficiency is not made within thirty days after
the filing of such waiver, interest shall not be imposed on such defi-
ciency for the period beginning immediately after such thirtieth day and
ending with the date of notice and demand.
(f) Interest treated as tax. Interest under this section shall be
paid upon notice and demand and shall be assessed, collected and paid in
the same manner as tax. Any reference in this chapter to the tax
imposed by this chapter shall be deemed also to refer to interest
imposed by this section on such tax.
(g) Interest on penalties or additions to tax. Interest shall be
imposed under subdivision (a) of this section in respect of any assess-
able penalty or addition to tax only if such assessable penalty or addi-
tion to tax is not paid within ten days from the date of the notice and
demand therefor under subdivision (b) of section 11-1934 of this
subchapter, and in such case interest shall be imposed only for the
period from such date of the notice and demand to the date of payment.
(h) Payment prior to notice of deficiency. If, prior to the mailing
to the taxpayer of a notice of deficiency under subdivision (b) of
section 11-1923 of this subchapter, the commissioner mails to the
taxpayer a notice of proposed increase of tax and within thirty days
after the date of the notice of proposed increase the taxpayer pays all
amounts shown on the notice to be due to the commissioner, no interest
under this section on the amount so paid shall be imposed for the period
after the date of such notice of proposed increase.
(i) Payment within ninety days after notice of deficiency. If a
notice of deficiency under section 11-1923 of this subchapter is mailed
to the taxpayer, and the total amount specified in such notice is paid
on or before the ninetieth day after the date of mailing, interest under
this section shall not be imposed for the period after the date of the
notice.
(j) Payment within ten days after notice and demand. If notice and
demand is made for payment of any amount under subdivision (b) of
section 11-1934 of this subchapter, and if such amount is paid within
ten days after the date of such notice and demand, interest under this
section on the amount so paid shall not be imposed for the period after
the date of such notice and demand.
(k) Limitation on assessment and collection. Interest prescribed
under this section may be assessed and collected at any time during the
A. 10030 1006
period within which the tax or other amount to which such interest
relates may be assessed and collected, respectively.
(l) Interest on erroneous refund. Any portion of tax or other amount
which has been erroneously refunded, and which is recoverable by the
commissioner, shall bear interest at the rate of six per centum per
annum from the date of the payment of the refund, but only if it appears
that any part of the refund was induced by fraud or a misrepresentation
of a material fact.
(m) Satisfaction by credits. If any portion of a tax is satisfied by
credit of an overpayment, then no interest shall be imposed under this
section on the portion of the tax so satisfied for any period during
which, if the credit had not been made, interest would have been allow-
able with respect to such overpayment.
§ 11-1927 Additions to tax and civil penalties. (a) Failure to file
tax return. In case of failure to file a tax return under this chapter
on or before the prescribed date, determined with regard to any exten-
sion of time for filing, unless it is shown that such failure is due to
reasonable cause and not due to willful neglect, there shall be added to
the amount required to be shown as tax on such return five percent of
the amount of such tax if the failure is for not more than one month,
with an additional five percent for each additional month or fraction
thereof during which such failure continues, not exceeding twenty-five
percent in the aggregate. For this purpose, the amount of tax required
to be shown on the return shall be reduced by the amount of any part of
the tax which is paid on or before the date prescribed for payment of
the tax and by the amount of any credit against the tax which may be
claimed upon the return.
(b) Deficiency due to negligence. If any part of a deficiency is due
to negligence or intentional disregard of this chapter or rules or regu-
lations hereunder, but without intent to defraud, there shall be added
to the tax an amount equal to five percent of the deficiency.
(c) Failure to file declaration or underpayment of estimated tax. If
any taxpayer fails to file a declaration of estimated tax or fails to
pay all or any part of an installment of estimated tax, the taxpayer
shall be deemed to have made an underpayment of estimated tax. There
shall be added to the tax for the taxable year an amount at the rate of
six per centum upon the amount of the underpayment for the period of the
underpayment but not beyond the fifteenth day of the fourth month
following the close of the taxable year. The amount of underpayment
shall be the excess of the amount of the installment which would be
required to be paid if the estimated tax were equal to seventy percent
of the tax attributable to net earnings from self employment shown on
the tax return for the taxable year, or if no return was filed, of the
tax so attributable for such year, over the amount, if any, of the
installment paid on or before the last day prescribed for such payment.
No underpayment shall be deemed to exist with respect to a declaration
or installment otherwise due on or after the taxpayer's death.
(d) Exception to addition for underpayment of estimated tax. The addi-
tion to tax under subdivision (c) of this section with respect to any
underpayment of any installment shall not be imposed if the total amount
of all payments of estimated tax made on or before the last date
prescribed for the payment of such installment equals or exceeds which-
ever of the following is the lesser:
(1) The amount which would have been required to be paid on or before
such date if the estimated tax were whichever of the following is the
lesser:
A. 10030 1007
(A) The tax attributable to net earnings from self-employment shown on
the return of the individual for the preceding taxable year, if a return
showing a liability for tax was filed by the individual for the preced-
ing taxable year and such preceding year was a taxable year of twelve
months, or
(B) An amount equal to seventy percent of the tax so attributable for
the taxable year computed by placing on an annualized basis the taxable
net earnings from self-employment for the months in the taxable year
ending before the month in which the installment is required to be paid.
For purposes of this subparagraph, the taxable net earnings from self-
employment shall be placed on an annualized basis by:
(i) multiplying by twelve, or, in the case of a taxable year of less
than twelve months, the number of months in the taxable year, the taxa-
ble net earnings from self-employment for the months in the taxable year
ending before the month in which the installment is required to be
paid,
(ii) dividing the resulting amount by the number of months in the
taxable year ending before the month in which such installment date
falls, and
(iii) deducting from such amount the proper proportion of the exclu-
sion allowable for the taxable year by subdivision (b) of section
11-1902 of this chapter; or
(2) An amount equal to ninety percent of the tax computed, at the
rates applicable to the taxable year, on the basis of the actual taxable
net earnings from self-employment for the months in the taxable year
ending before the month in which the installment is required to be paid.
(e) Deficiency due to fraud. If any part of a deficiency is due to
fraud, there shall be added to the tax an amount equal to fifty percent
of the deficiency. This amount shall be in lieu of any other addition
to tax imposed by subdivision (a) or (b) of this section.
(f) Non-willful failure to pay withholding tax. If any employer, with-
out intent to evade or defeat any tax imposed by this chapter or the
payment thereof, shall fail to make a return and pay a tax withheld by
him or her at the time required by or under provisions of section
11-1912 of this chapter, such employer shall be liable for such tax and
shall pay the same together with interest thereon and the addition to
tax provided in subdivision (a) of this section, and such interest and
addition to tax shall not be charged to or collected from the employee
by the employer. The commissioner shall have the same rights and powers
for the collection of such tax, interest and addition to tax against
such employer as are now prescribed by this chapter for the collection
of tax against an individual taxpayer.
(g) Willful failure to collect and pay over tax. Any person required
to collect, truthfully account for, and pay over the tax imposed by this
chapter who willfully fails to collect such tax or truthfully account
for and pay over such tax or willfully attempts in any manner to evade
or defeat the tax or the payment thereof, shall, in addition to other
penalties provided by law, be liable to a penalty equal to the total
amount of the tax evaded, or not collected, or not accounted for and
paid over. No addition to tax under subdivision (b) or (e) of this
section shall be imposed for any offense to which this subdivision
applies.
(h) Failure to file certain information returns. In case of each fail-
ure to file a statement of a payment to another person, required under
authority of subdivision (c) of section 11-1921 of this chapter, relat-
ing to information at source, including the duplicate statement of tax
A. 10030 1008
withheld on wages, on the date prescribed therefor, determined with
regard to any extension of time for filing, unless it is shown that such
failure is due to reasonable cause and not willful neglect, there shall,
upon notice and demand by the commissioner and in the same manner as
tax, be paid by the person so failing to file the statement, a penalty
of one dollar for each statement not so filed, but the total amount
imposed on the delinquent person for all such failures during any calen-
dar year shall not exceed one thousand dollars.
(i) Additional penalty. Any person who with fraudulent intent shall
fail to pay, or to deduct or withhold and pay, any tax, or to make,
render, sign or certify any return or declaration of estimated tax, or
to supply any information within the time required by or under this
chapter, shall be liable to a penalty of not more than one thousand
dollars, in addition to any other amounts required under this chapter,
to be imposed, assessed and collected by the commissioner. The commis-
sioner shall have the power, in his or her discretion, to waive, reduce
or compromise any penalty under this subdivision.
(j) Additions treated as tax. The additions to tax and penalties
provided by this section shall be paid upon notice and demand and shall
be assessed, collected and paid in the same manner as taxes, and any
reference in this chapter to tax or tax imposed by this chapter, shall
be deemed also to refer to the additions to tax and penalties provided
by this section. For purposes of section 11-1923 of this subchapter,
this subdivision shall not apply to:
(1) any addition to tax under subdivision (a) of this section except
as to that portion attributable to a deficiency;
(2) any addition to tax under subdivision (c) of this section; and
(3) any additional penalty under subdivision (i) of this section.
(k) Determination of deficiency. For purposes of subdivisions (b) and
(e) of this section, the amount shown as the tax by the taxpayer upon
his or her return shall be taken into account in determining the amount
of the deficiency only if such return was filed on or before the last
day prescribed for the filing of such return, determined with regard to
any extension of time for such filing.
(l) Person defined. For purposes of subdivisions (g) and (i) of this
section, the term "person" includes an individual, corporation or part-
nership or an officer or employee of any corporation, including a
dissolved corporation, or a member or employee of any partnership, who
as such officer, employee, or member is under a duty to perform the act
in respect of which the violation occurs.
§ 11-1928 Overpayment. (a) General. The commissioner, within the
applicable period of limitations, may credit an overpayment of tax and
interest on such overpayment against any liability in respect of any tax
imposed by this chapter or by another chapter or chapters of this title
on the person who made the overpayment, and the balance shall be
refunded. Any refund under this section shall be made only upon the
filing of a return.
(b) Excessive withholding. If the amount allowable as a credit for tax
withheld from the taxpayer exceeds his or her tax to which the credit
relates, the excess shall be considered an overpayment.
(c) Overpayment by employer. If there has been an overpayment of tax
required to be deducted and withheld under section 11-1908 of this chap-
ter, refund shall be made to the employer only to the extent that the
amount of the overpayment was not deducted and withheld by the employer.
(d) Credits against estimated tax. The commissioner may prescribe
regulations providing for the crediting against the estimated tax for
A. 10030 1009
any taxable year of the amount determined to be an overpayment of the
tax for a preceding taxable year. If any overpayment of tax is so
claimed as a credit against estimated tax for the succeeding taxable
year, such amount shall be considered as a payment of the tax for the
succeeding taxable year, whether or not claimed as a credit in the
declaration of estimated tax for such succeeding taxable year, and no
claim for credit or refund of such overpayment shall be allowed for the
taxable year for which the overpayment arises.
(e) Rule where no tax liability. If there is no tax liability for a
period in respect of which an amount is paid as tax, such amount shall
be considered an overpayment.
(f) Assessment and collection after limitation period. If any amount
of tax is assessed or collected after the expiration of the period of
limitations properly applicable thereto, such amount shall be considered
an overpayment.
(g) Notwithstanding any provision of law in article fifty-two of the
civil practice law and rules to the contrary, the procedures for the
enforcement of money judgments shall not apply to the department of
finance, or to any officer or employee of the department of finance, as
a garnishee, with respect to any amount of money to be refunded or cred-
ited to a taxpayer under this chapter.
§ 11-1929 Limitations on credit or refund. (a) General. Claim for
credit or refund of an overpayment of tax shall be filed by the taxpayer
within three years from the time the return was filed or two years from
the time the tax was paid, whichever of such periods expires the later,
or if no return was filed, within two years from the time the tax was
paid. If the claim is filed within the three year period, the amount of
the credit or refund shall not exceed the portion of the tax paid within
the three years immediately preceding the filing of the claim plus the
period of any extension of time for filing the return. If the claim is
not filed within the three year period, but is filed within the two year
period, the amount of the credit or refund shall not exceed the portion
of the tax paid during the two years immediately preceding the filing of
the claim. Except as otherwise provided in this section, if no claim is
filed, the amount of a credit or refund shall not exceed the amount
which would be allowable if a claim had been filed on the date the cred-
it or refund is allowed.
(b) Extension of time by agreement. If an agreement under the
provisions of paragraph two of subdivision (b) of section 11-1925 of
this subchapter, extending the period for assessment of tax, is made
within the period prescribed in subdivision (a) of this section for the
filing of a claim for credit or refund, the period for filing a claim
for credit or refund, or for making credit or refund if no claim is
filed, shall not expire prior to six months after the expiration of the
period within which an assessment may be made pursuant to the agreement
or any extension thereof. The amount of such credit or refund shall not
exceed the portion of the tax paid after the execution of the agreement
and before the filing of the claim or the making of the credit or
refund, as the case may be, plus the portion of the tax paid within the
period which would be applicable under subdivision (a) of this section
if a claim had been filed on the date the agreement was executed.
(c) Notice of change or correction of federal or New York state
income. If a taxpayer is required by section 11-1922 of this chapter to
report a change or correction in federal or New York state taxable
income or self-employment income reported on his or her federal or New
York state tax return, or to report an assessment or a change or
A. 10030 1010
correction which is treated in the same manner as if it were an overpay-
ment for federal or New York state income tax purposes, or to file an
amended return with the commissioner, claim for credit or refund of any
resulting overpayment of tax shall be filed by the taxpayer within two
years from the time the notice of such change or correction or such
amended return was required to be filed with the commissioner. If the
report or amended return required by section 11-1922 of this chapter is
not filed within the ninety day period therein specified, interest on
any resulting refund or credit shall cease to accrue after such nineti-
eth day. The amount of such credit or refund shall not exceed the
amount of the reduction in tax attributable to such federal or New York
state change, correction or items amended on the taxpayer's amended
federal or New York state income tax or self-employment tax return.
This subdivision shall not affect the time within which or the amount
for which a claim for credit or refund may be filed apart from this
subdivision.
(d) Failure to file claim within prescribed period. No credit or
refund shall be allowed or made, except as provided in subdivision (e)
of this section or subdivision (d) of section 11-1932 of this subchapter
after the expiration of the applicable period of limitation specified in
this chapter unless a claim for credit or refund is filed by the taxpay-
er within such period. Any later credit shall be void and any later
refund erroneous. No period of limitations specified in any other law
shall apply to the recovery by a taxpayer of moneys paid in respect of
taxes under this chapter.
(e) Effect of petition to commissioner. If a notice of deficiency for
a taxable year has been mailed to the taxpayer under section 11-1923 of
this subchapter and if the taxpayer files a timely petition with the
commissioner under section 11-1931 of this subchapter, the commissioner
may determine that the taxpayer has made an overpayment for such year,
whether or not the commissioner also determines a deficiency for such
year. No separate claim for credit or refund for such year shall be
filed, and no credit or refund for such year shall be allowed or made,
except:
(1) as to overpayments determined by a decision of the commissioner
which has become final;
(2) as to any amount collected in excess of an amount computed in
accordance with the decision of the commissioner which has become final;
(3) as to any amount collected after the period of limitation upon the
making of levy for collection has expired; and
(4) as to any amount claimed as a result of a change or correction
described in subdivision (c) of this section.
(f) Limit on amount of credit or refund. The amount of overpayment
determined under subdivision (e) of this section shall, when the deci-
sion of the commissioner has become final, be credited or refunded in
accordance with subdivision (a) of section 11-1928 of this subchapter
and shall not exceed the amount of tax which the commissioner determines
as part of his or her decision was paid:
(1) after the mailing of the notice of deficiency, or
(2) within the period which would be applicable under subdivision (a),
(b) or (c) of this section, if on the date of the mailing of the notice
of deficiency a claim has been filed, whether or not filed, stating the
grounds upon which the commissioner finds that there is an overpayment.
(g) Early return. For purposes of this section, any return filed
before the last day prescribed for the filing thereof shall be consid-
A. 10030 1011
ered as filed on such last day, determined without regard to any exten-
sion of time granted the taxpayer.
(h) Prepaid tax. For purposes of this section, any tax paid by the
taxpayer before the last day prescribed for its payment, any tax with-
held from the taxpayer during any calendar year, and any amount paid by
the taxpayer as estimated tax for a taxable year shall be deemed to have
been paid by the taxpayer on the fifteenth day of the fourth month
following the close of his or her taxable year with respect to which
such amount constitutes a credit or payment.
(i) Return and payment of withholding tax. Notwithstanding subdivision
(g) of this section, for purposes of this section with respect to any
withholding tax:
(1) if a return for any period ending with or within a calendar year
is filed before April fifteenth of the succeeding calendar year, such
return shall be considered filed on April fifteenth of such succeeding
calendar year; and
(2) if a tax with respect to remuneration paid during any period
ending with or within a calendar year is paid before April fifteenth of
the succeeding calendar year, such tax shall be considered paid on April
fifteenth of such succeeding calendar year.
(j) Cross reference. For provision barring refund of overpayment cred-
ited against tax of a succeeding year, see subdivision (d) of section
11-1928 of this subchapter.
§ 11-1930 Interest on overpayment. (a) General. Notwithstanding the
provisions of section three-a of the general municipal law, interest
shall be allowed and paid as follows at the appropriate rates prescribed
for overpayments of tax under chapter seventeen of this title upon any
overpayment in respect of the tax imposed by this chapter:
(1) from the date of the overpayment to the due date of an amount
against which a credit is taken; or
(2) from the date of the overpayment to a date, to be determined by
the commissioner, preceding the date of a refund check by not more than
thirty days, whether or not such refund check is accepted by the taxpay-
er after tender of such check to the taxpayer. The acceptance of such
check shall be without prejudice to any right of the taxpayer to claim
any additional overpayment and interest thereon.
No interest shall be allowed or paid if the amount thereof is less
than one dollar.
(b) Advance payment of tax, payment of estimated tax, and credit for
tax withholding. The provisions of subdivisions (g), (h) and (i) of
section 11-1929 of this subchapter applicable in determining the date of
payment of tax for purposes of determining the period of limitations on
credit or refund, shall be applicable in determining the date of payment
for purposes of this section.
(c) Refund within three months of due date of tax. If any overpayment
of tax imposed by this chapter is refunded within three months after the
last date prescribed, or permitted by extension of time, for filing the
return of such tax or within three months after the return was filed,
whichever is later, no interest shall be allowed under this section on
such overpayment.
(d) Cross-reference. For provision terminating interest after failure
to file notice of federal or New York state change under section 11-1922
of this chapter, see subdivision (c) of 11-1929 of this subchapter.
§ 11-1931 Petition to commissioner. (a) General. The form of a peti-
tion to the commissioner, and further proceedings before the commission-
er in any case initiated by the filing of a petition, shall be governed
A. 10030 1012
by such rules as the commissioner shall prescribe. No petition shall be
denied in whole or in part without opportunity for a hearing on reason-
able prior notice. Such hearing shall be conducted by the commissioner,
or by a hearing officer designated by the commissioner to take evidence
and report to the commissioner. The commissioner shall decide the case
as quickly as practicable. Notice of the decision shall be mailed
promptly to the taxpayer by certified or registered mail at his or her
last known address and such notice shall set forth the commissioner's
findings of fact and a brief statement of the grounds of decision in
each case decided in whole or in part adversely to the taxpayer. Any
portion of an assessment of a deficiency disallowed by the commission-
er's decision, shall be forthwith abated, or if paid, credited or
refunded to the taxpayer without the making of a claim therefor.
(b) Petition for redetermination of a deficiency. Within ninety days,
or one hundred fifty days if the notice is addressed to a person outside
of the United States, after the mailing of the notice of deficiency
authorized by section 11-1923 of this subchapter, the taxpayer may file
a petition with the commissioner for a redetermination of the deficien-
cy. Such petition may also assert a claim for refund for the same taxa-
ble year or years, subject to the limitations of subdivision (f) of
section 11-1929 of this subchapter.
(c) Petition for refund. A taxpayer may file a petition with the
commissioner for the amounts asserted in a claim for refund if:
(1) the taxpayer has filed a timely claim for refund with the commis-
sioner,
(2) the taxpayer has not previously filed with the commissioner a
timely petition under subdivision (b) of this section for the same
taxable year unless the petition under this subdivision relates to a
separate claim for credit or refund properly filed under subdivision (e)
of section 11-1929 of this subchapter, and
(3) either: (A) six months have expired since the claim was filed, or
(B) the commissioner has mailed to the taxpayer, by registered or certi-
fied mail, a notice of disallowance of such claim in whole or in part.
No petition under this subdivision shall be filed more than two years
after the date of mailing of a notice of disallowance, unless prior to
the expiration of such a two-year period it has been extended by writ-
ten agreement between the taxpayer and the commissioner. If a taxpayer
files a written waiver of the requirement that he or she be mailed a
notice of disallowance, the two year period prescribed by this subdivi-
sion for filing a petition for refund shall begin on the date such waiv-
er is filed.
(d) Assertion and assessment of deficiency after filing petition.
(1) Petition for redetermination of deficiency. If a taxpayer files
with the commissioner a petition for redetermination of a deficiency,
the commissioner shall have power to determine and assess a greater
deficiency than asserted in the notice of deficiency and to determine
and assess any addition to tax or penalty provided in section 11-1927 of
this subchapter, if claim therefor is asserted at or before the hearing
and within the period in which an assessment would be timely under
section 11-1925 of this subchapter under the rules of the commissioner.
(2) Petition for refund. If the taxpayer files with the commissioner a
petition for credit or refund for a taxable year, the commissioner may:
(A) determine and assess a deficiency for such year as to any amount
of deficiency claim, which shall be an assessment, for which is asserted
at or before the hearing under rules of the commissioner, and within the
A. 10030 1013
period in which an assessment would be timely under section 11-1925 of
this subchapter, or
(B) deny so much of the amount for which credit or refund is sought in
the petition, as is offset by other issues pertaining to the same taxa-
ble year which are asserted at or before the hearing under rules of the
commissioner.
(3) Opportunity to respond. A taxpayer shall be given a reasonable
opportunity to respond to any matters asserted by the commissioner under
this subdivision.
(4) Restriction on further notices of deficiency. If the taxpayer
files a petition with the commissioner under this section, no notice of
deficiency under section 11-1923 of this subchapter may thereafter be
issued by the commissioner for the same taxable year, except in case of
fraud or with respect to a change or correction in federal or New York
state taxable income or self-employment income required to be reported
under section 11-1922 of this chapter.
(e) Burden of proof. In any case before the commissioner under this
chapter, the burden of proof shall be upon the petitioner except for the
following issues, as to which the burden of proof shall be upon the
commissioner:
(1) whether the petitioner has been guilty of fraud with intent to
evade tax;
(2) whether the petitioner is liable as the transferee of property of
a taxpayer, except where the petitioner's liability arises by reason of
section 11-1936 of this subchapter, but not to show that the taxpayer
was liable for the tax; and
(3) whether the petitioner is liable for any increase in a deficiency
where such increase is asserted initially after a notice of deficiency
was mailed and a petition under this section filed, unless such increase
in deficiency is the result of a change or correction of federal or New
York state taxable income or self-employment income required to be
reported under section 11-1922 of this chapter, and of which change or
correction the commissioner had no notice at the time he or she mailed
the notice of deficiency.
(f) Evidence of related federal determination. Evidence of a federal
determination relating to issues raised in a case before the commission-
er under this section shall be admissible, under rules established by
the commissioner.
(g) Jurisdiction over other years. The commissioner shall consider
such facts with relation to the taxes for other years as may be neces-
sary correctly to determine the tax for the taxable year, but in so
doing shall have no jurisdiction to determine whether or not the tax for
any other year has been overpaid or underpaid.
§ 11-1932 Review of commissioner's decision. (a) General. A decision
of the commissioner shall be subject to judicial review for error, ille-
gality or unconstitutionality at the instance of any taxpayer affected
thereby in the manner provided by law for the review of a final decision
or action of administrative agencies of the city. An application by a
taxpayer for such review must be made within four months after notice of
the decision is sent by certified or registered mail to the taxpayer.
(b) Judicial review exclusive remedy of taxpayer. The review of a
decision of the commissioner provided by this section shall be exclusive
remedy available to any taxpayer for the judicial determination of the
liability of the taxpayer for the taxes imposed by this chapter.
(c) Collection pending review; review bond. Irrespective of any
restrictions on the collection of assessments for deficiencies, the
A. 10030 1014
commissioner may collect by levy or, otherwise any assessment of a defi-
ciency after the expiration of the period specified in subdivision (a)
of this section, notwithstanding that an application for judicial review
in respect of such deficiency has been duly made by the taxpayer, unless
the taxpayer, at or before the time his or her application for review is
made, has paid the assessed deficiency, has deposited with the commis-
sioner the amount of the assessed deficiency, or has filed with the
commissioner a bond, which may be a jeopardy bond under subdivision (h)
of section 11-1937 of this subchapter, in the amount of the portion of
the assessed deficiency, including interest and other amounts, in
respect of which the application for review is made with surety approved
by a justice of the supreme court of the state of New York, conditioned
upon the payment of the assessed deficiency, including interest and
other amounts, as finally determined. If as a result of a waiver of the
restrictions on the collection of a deficiency any part of the amount
determined by the commissioner is paid after the filing of the review
bond, such bond shall, at the request of the taxpayer, be proportionate-
ly reduced. A similar bond for all costs and charges which may accrue
against the taxpayer in the prosecution of such judicial review proceed-
ing must be filed with the commissioner before any such proceeding is
instituted.
(d) Credit, refund or abatement after review. If the amount of a defi-
ciency assessed and determined by the commissioner is disallowed in
whole or in part by the court of review, the amount so disallowed shall
be credited or refunded to the taxpayer, without the making of claim
therefor, or, if payment has not been made, shall be abated.
(e) Date of finality of commissioner's decision. A decision of the
commissioner shall become final upon the expiration of the period speci-
fied in subdivision (a) of this section for making an application for
review, if no such application has been duly made within such time, or
if such application has been duly made, upon expiration of the time for
all further judicial review, or upon the rendering by the commissioner
of a decision in accordance with the mandate of the court on review.
Provided, however, for the purpose of making an application for review,
the decision of the commissioner shall be deemed final on the date the
notice of decision is sent by certified or registered mail to the
taxpayer.
§ 11-1933 Mailing rules; holidays. (a) Timely mailing. If any claim,
statement, notice, petition, or other document, including to the extent
authorized by the commissioner, a return or declaration of estimated
tax, required to be filed within a prescribed period or on or before a
prescribed date under authority of any provision of this chapter is,
after such period or such date, delivered by the United States mail to
the commissioner, bureau, office, officer or person with which or with
whom such document is required to be filed, the date of the United
States postmark stamped on the envelope shall be deemed to be the date
of delivery. This subdivision shall apply only if the postmark date
falls within the prescribed period or on or before the prescribed date
for the filing of such document, determined with regard to any extension
granted for such filing, and only if such document was deposited in the
mail, postage prepaid, properly addressed to the commissioner, bureau,
office, officer or person with which or with whom the document is
required to be filed. If any document is sent by United States regis-
tered mail, such registration shall be prima facie evidence that such
document was delivered to the commissioner, bureau, office, officer or
person to which or to whom addressed. To the extent that the commis-
A. 10030 1015
sioner shall prescribe by regulation, certified mail may be used in lieu
of registered mail under this section. This subdivision shall apply in
the case of postmarks not made by the United States post office only if
and to the extent provided by regulations of the commissioner.
(b) Last known address. For purposes of this chapter, a taxpayer's
last known address shall be the address given in the last return filed
by the taxpayer, unless subsequent to the filing of such return the
taxpayer shall have notified the commissioner of a change of address.
(c) Last day a Saturday, Sunday or legal holiday. When the last day
prescribed under authority of this chapter, including any extension of
time, for performing any act falls on Saturday, Sunday, or a legal holi-
day in the state of New York, the performance of such act shall be
considered timely if it is performed on the next succeeding day which is
not a Saturday, Sunday or a legal holiday.
§ 11-1934 Collection, levy and liens. (a) Collection procedures. The
taxes imposed by this chapter shall be collected by the commissioner,
and he or she may establish the mode or time for the collection of any
amount due the commissioner under this chapter if not otherwise speci-
fied. The commissioner shall, upon request, give a receipt for any sum
collected under this chapter. The commissioner may authorize banks or
trust companies which are depositories or financial agents of the city
to receive and give a receipt for any tax imposed under this chapter in
such manner, at such times, and under such conditions as the commission-
er may prescribe; and the commissioner shall prescribe the manner, times
and conditions under which the receipt of such tax by such banks and
trust companies is to be treated as payment of such tax to the commis-
sioner.
(b) Notice and demand for tax. The commissioner shall as soon as prac-
ticable and, in the case of an assessment the collection of which is
restricted by the provisions of subdivision (c) of section 11-1923 of
this subchapter, as soon as practicable after the expiration of such
restrictions give notice to each person liable for any amount of tax,
addition to tax, penalty or interest, which has been assessed but
remains unpaid, stating the amount and demanding payment thereof. Such
notice shall be left at the dwelling or usual place of business of such
person or shall be sent by mail to such person's last known address.
Except where the commissioner determines that collection would be jeop-
ardized by delay, if any tax is assessed prior to the last date, includ-
ing any date fixed by extension, prescribed for payment of such tax,
payment of such tax shall not be demanded until after such date.
(c) Issuance of warrant after notice and demand. If any person liable
under this chapter for the payment of any tax, addition to tax, penalty
or interest neglects or refuses to pay the same within ten days after
notice and demand therefor is given to such person under subdivision (b)
of this section, the commissioner may within six years after the date of
the expiration of the period of restriction on the collection of such
assessment issue a warrant directed to the sheriff of any county of the
state, or to any officer or employee of the department of finance of the
city, commanding the sheriff or such officer or employee to levy upon
and sell such person's real and personal property for the payment of the
amount assessed, with the cost of executing the warrant, and to return
such warrant to the commissioner and pay to him or her the money
collected by virtue thereof within sixty days after the receipt of the
warrant. If the commissioner finds that the collection of tax or other
amount is in jeopardy, notice and demand for immediate payment of such
tax may be made by the commissioner and upon failure or refusal to pay
A. 10030 1016
such tax or other amount the commissioner may issue a warrant without
regard to the ten-day period provided in this subdivision.
(d) Copy of warrant to be filed and lien to be created. Any sheriff or
officer or employee who receives a warrant under subdivision (c) of this
section shall within five days thereafter file a copy with the clerk of
the appropriate county. The clerk shall thereupon enter in the judgment
docket, in the column for judgment debtors, the name of the taxpayer
mentioned in the warrant, and in appropriate columns the tax or other
amounts for which the warrant is issued and the date when such copy is
filed; and such amount shall thereupon be a binding lien upon the real,
personal and other property of the taxpayer.
(e) Judgment. When a warrant has been filed with the county clerk the
commissioner shall, on behalf of the city, be deemed to have obtained
judgment against the taxpayer for the tax or other amounts.
(f) Execution. The sheriff or officer or employee shall thereupon
proceed upon the judgment in all respects, with like effect, and in the
same manner prescribed by law in respect to executions issued against
property upon judgments of a court of record, and a sheriff shall be
entitled to the same fees for such sheriff's services in executing the
warrant, to be collected in the same manner. An officer or employee of
the department of finance of the city may proceed in any county or coun-
ties of this state and shall have all the powers of execution conferred
by law upon sheriffs, but shall be entitled to no fee or compensation in
excess of actual expenses paid in connection with the execution of the
warrant.
(g) Taxpayer not then a resident. Where a notice and demand under
subdivision (b) of this section shall have been given to a taxpayer who
is not then a resident of this state, and it appears to the commissioner
that it is not practicable to find in this state property of the taxpay-
er sufficient to pay the entire balance of tax or other amount owing by
such taxpayer who is not then a resident of this state, the commissioner
may, in accordance with subdivision (c) of this section, issue a warrant
directed to an officer or employee of the department of finance of the
city a copy of which warrant shall be mailed by certified or registered
mail to the taxpayer at his or her last known address, subject to the
rules for mailing provided in subdivision (a) of section 11-1933 of this
subchapter. Such warrant shall command the officer or employee to
proceed in the city, and such officer or employee shall, within five
days after receipt of the warrant, file the warrant and obtain a judg-
ment in accordance with this section. Thereupon the commissioner may
authorize the institution of any action or proceeding to collect or
enforce the judgment in any place and by any procedure where and by
which a civil judgment of the supreme court of the state of New York
could be collected or enforced. The commissioner may also, in his or
her discretion, designate agents or retain counsel for the purpose of
collecting, outside the state of New York, any unpaid taxes, additions
to tax, penalties or interest which have been assessed under this chap-
ter against taxpayers who are not then residents of this state, may fix
the compensation of such agents and counsel to be paid out of money
appropriated or otherwise lawfully available for payment thereof, and
may require of them bonds or other security for the faithful performance
of their duties, in such form and in such amount as the commissioner
shall deem proper and sufficient.
(h) Action by the city for recovery of taxes. Action may be brought by
the corporation counsel or other appropriate officer of the city at the
insistence of the commissioner to recover the amount of any unpaid
A. 10030 1017
taxes, additions to tax, penalties or interest which have been assessed
under this chapter within six years prior to the date the action is
commenced. The period during which collection of any assessment is
prohibited by subdivision (c) of section 11-1923 of this subchapter,
shall be added to such six years.
(i) Release of lien. The commissioner, if he or she finds that the
interest of the city will not thereby be jeopardized, and upon such
conditions as may require, may release any property from the lien of any
warrant for unpaid taxes, additions to tax, penalties and interest filed
pursuant to this section, and such release may be recorded in the office
of any recording officer in which such warrant has been filed.
§ 11-1935 Transferees. (a) General. The liability, at law or in equi-
ty, of a transferee of property of a taxpayer for any tax, additions to
tax, penalty or interest due to the city under this chapter, shall be
assessed, paid, and collected in the same manner and subject to the same
provisions and limitations as in the case of the tax to which liability
relates, except that the period of limitations for assessment against
the transferee shall be extended by one year for each successive trans-
fer, in order, from the original taxpayer to the transferee involved,
but not by more than three years in the aggregate. The term "transfer-
ee" includes donee, heir, legatee, devisee and distributee; and also
includes a person liable for the amount of any tax, additions to tax,
penalty or interest under the provisions of section 11-1936 of this
subchapter.
(b) Exceptions. (1) If before the expiration of the period of limita-
tions for assessment of liability of the transferee, a claim has been
filed by the commissioner in any court against the original taxpayer or
the last preceding transferee based upon the liability of the original
taxpayer, then the period of limitation for assessment of liability of
the transferee shall in no event expire prior to one year after such
claim has been finally allowed, disallowed or otherwise disposed of.
(2) If, before the expiration of the time prescribed in subdivision
(a) of this section or paragraph one of this subdivision for the assess-
ment of the liability, the commissioner and the transferee have both
consented in writing to its assessment after such time, the liability
may be assessed at any time prior to the expiration of the period agreed
upon. The period so agreed upon may be extended by subsequent agree-
ments in writing made before the expiration of the period previously
agreed upon. For the purpose of determining the period of limitation on
credit or refund to the transferee of overpayments of tax made by such
transferee or overpayments of tax made by the transferor as to which the
transferee is legally entitled to credit or refund, such agreement and
any extension thereof shall be deemed an agreement and extension thereof
referred to in subdivision (b) of section 11-1929 of this subchapter.
If the agreement is executed after the expiration of the period of limi-
tation for assessment against the original taxpayer, then in applying
the limitations under subdivision (b) of section 11-1929 of this
subchapter on the amount of the credit or refund, the periods specified
in subdivision (a) of section 11-1929 of this subchapter shall be
increased by the period from the date of such expiration to the date of
the agreement.
(c) Deceased transferor. If any person is deceased, the period of
limitation for assessment against such person shall be the period that
would be in effect if he or she had lived.
(d) Evidence. Notwithstanding the provisions of section 11-1942 of
this subchapter, the commissioner shall use his or her powers to make
A. 10030 1018
available to the transferee evidence necessary to enable the transferee
to determine the liability of the original taxpayer and of any preceding
transferees, but without undue hardship to the original taxpayer or
preceding transferee. See subdivision (e) of section 11-1931 of this
subchapter for rule as to burden of proof.
§ 11-1936 Liability of bulk transferees. Whenever there is made a
sale, transfer or assignment in bulk of any part or the whole of a stock
of merchandise or of fixtures, or merchandise and of fixtures pertaining
to the conducting of the business of the seller, transferor or assignor,
otherwise than in the ordinary course of trade and in the regular prose-
cution of said business, the purchaser, transferee or assignee shall at
least ten days before taking possession of such merchandise, fixtures,
or merchandise and fixtures, or paying therefor, notify the commissioner
by registered mail of the proposed sale and of the price, terms and
conditions thereof, whether or not the seller, transferor or assignor,
has represented to, or informed the purchaser, transferee or assignee,
that it owes any tax pursuant to this chapter, whether or not the
purchaser, transferee or assignee has knowledge that such taxes are
owing, and whether or not any such taxes are in fact owing.
Whenever the purchaser, transferee or assignee shall fail to give the
notice to the commissioner required by this section, or whenever the
commissioner shall inform the purchaser, transferee or assignee that a
possible claim for such tax or taxes exists, any sums of money, property
or choses in action, or other consideration, which the purchaser, trans-
feree or assignee is required to transfer over to the seller, transferor
or assignor shall be subject to a first priority right and lien for any
such taxes theretofore or thereafter determined to be due from the sell-
er, transferor or assignor to the city, and the purchaser, transferee or
assignee is forbidden to transfer to the seller, transferor or assignor
any such sums of money, property or choses in action to the extent of
the amount of the city's claim. For failure to comply with the
provisions of this subdivision the purchaser, transferee or assignee, in
addition to being subject to the liabilities and remedies imposed under
the provisions of article six of the uniform commercial code, shall be
personally liable for the payment to the city of any such taxes, there-
tofore or thereafter determined to be due to the city from the seller,
transferor or assignor and such liability may be assessed and enforced
in the same manner as the liability for tax is imposed under this chap-
ter.
§ 11-1937 Jeopardy determination or assessment. (a) Authority for
making. If the commissioner believes that the assessment or collection
of a deficiency will be jeopardized by delay, he or she shall, notwith-
standing the provisions of sections 11-1923 and 11-1939 of this subchap-
ter, immediately assess or proceed to collect such deficiency, together
with all interest, penalties and additions to tax provided for by law,
and notice and demand shall be made by the commissioner for the payment
thereof.
(b) Notice of deficiency. If the jeopardy assessment is made before
any notice in respect of the tax to which the jeopardy assessment
relates has been mailed under section 11-1923 of this subchapter, then
the commissioner shall mail a notice under such section within sixty
days after making of the assessment.
(c) Amount assessable before decision of commissioner. The jeopardy
assessment may be made in respect of a deficiency greater or less than
that of which notice is mailed to the taxpayer and whether or not the
taxpayer has therefor filed a petition with the commissioner. The
A. 10030 1019
commissioner may, at any time before rendering his or her decision,
abate such assessment or any unpaid portion thereof, to the extent that
he or she believes the assessment to be excessive in amount. The
commissioner may in his or her decision redetermine the entire amount of
the deficiency and of all amounts assessed at the same time in
connection therewith.
(d) Amount assessable after decision of commissioner. If the jeopardy
assessment of determination of jeopardy is made after the decision of
the commissioner is rendered, such assessment or determination may be
made only in respect of the deficiency determined by the commissioner in
his or her decision.
(e) Expiration of right to assess. A jeopardy determination may not be
made after the decision of the commissioner has become final or after
the taxpayer has made an application for review of the decision of the
commissioner.
(f) Collection of unpaid amounts. When a petition has been filed with
the commissioner and when the amount which should have been assessed has
been determined by a decision of the commissioner which has become
final, then any unpaid portion, the collection of which has been stayed
by bond, shall be collected as part of the tax upon notice and demand
from the commissioner, and any remaining portion of the assessment shall
be abated. If the amount already collected exceeds the amount deter-
mined as the amount which should have been assessed, such excess shall
be credited or refunded to the taxpayer as provided in section 11-1928
of this subchapter without the filing of claim therefor. If the amount
determined as the amount which should have been assessed is greater than
the amount actually assessed, then the difference shall be assessed and
shall be collected as part of the tax upon notice and demand from the
commissioner.
(g) Abatement if jeopardy does not exist. The commissioner may abate
the jeopardy determination if he or she finds that jeopardy does not
exist. Such abatement may not be made after a decision of the commis-
sioner in respect of the deficiency has been rendered or, if no petition
is filed with the commissioner, after the expiration of the period for
filing such petition. The period of limitation on the making of a levy
or a proceeding for collection, in respect of any deficiency, shall be
determined as if the jeopardy assessment so abated has not been made,
except that the running of such period shall in any event be suspended
for the period from the date of such jeopardy determination until the
expiration of the tenth day after the day on which such jeopardy deter-
mination is abated.
(h) Bond to stay collection. The collection of the whole or any amount
of any assessment determined to be in jeopardy may be stayed by filing
with the commissioner, within such time as may be fixed by regulation, a
bond in an amount equal to the amount as to which the stay is desired
conditioned upon the payment of the amount, together with interest ther-
eon, the collection of which is stayed at the time at which, but for the
making of the jeopardy assessment, such amount would be due. Upon the
filing of the bond, the collection of so much of the amount assessed as
is covered by the bond shall be stayed. The taxpayer shall have the
right to waive such stay at any time in respect of the whole or any part
of the amount covered by the bond and, if as a result of such waiver any
part of the amount covered by the bond is paid, then the bond shall, at
the request of the taxpayer, be proportionately reduced. If any portion
of the jeopardy assessment is abated, or if a notice of deficiency under
section 11-1923 of this subchapter is mailed to the taxpayer in a lesser
A. 10030 1020
amount, the bond shall, at the request of the taxpayer, be proportion-
ately reduced.
(i) Petition to commissioner. If the bond is given before the taxpayer
has filed his or her petition under section 11-1931 of this subchapter,
the bond shall contain a further condition that if a petition is not
filed within the period provided in such section, then the amount, the
collection of which is stayed by the bond, will be paid on notice and
demand at any time after the expiration of such period, together with
interest thereon from the date of the jeopardy notice and demand to the
date of notice and demand under this subdivision. The bond shall be
conditioned upon the payment of so much of such assessment, collection
of which is stayed by the bond, as is not abated by a decision of the
commissioner which has become final. If the commissioner determines
that the amount assessed is greater than the amount which should have
been assessed, then the bond shall, at the request of the taxpayer, be
proportionately reduced when the decision of the commissioner is
rendered.
(j) Stay of sale of seized property pending commissioner's decision.
Where a jeopardy assessment or a determination of jeopardy is made, the
property seized for the collection of the tax shall not be sold:
(1) if subdivision (b) of this section is applicable, prior to the
issuance of the notice of deficiency and the expiration of the time
provided in section 11-1931 of this subchapter for filing a petition
with the commissioner, and
(2) if a petition is filed with the commissioner, whether before or
after the making of such jeopardy assessment or determination, prior to
the expiration of the period during which the collection of the defi-
ciency assessed would be prohibited if subdivision (a) of this section
were not applicable.
Such property may be sold if the taxpayer consents to the sale, or if
the commissioner determines that the expenses of conservation and main-
tenance will greatly reduce the net proceeds, or if the property is
perishable.
(k) Interest. For the purpose of subdivision (a) of section 11-1926 of
this subchapter, the last date prescribed for payment shall be deter-
mined without regard to any notice and demand for payment issued under
this section prior to the last date otherwise prescribed for such
payment.
(l) Early termination of taxable year. If the commissioner finds that
a taxpayer designs quickly to depart from this state or to remove his or
her property therefrom, or to conceal himself or herself or his or her
property therein, or to do any other act tending to prejudice or to
render wholly or partly ineffectual proceedings to collect the tax for
the current or the preceding taxable year unless such proceedings be
brought without delay, the commissioner shall declare the taxable period
for such taxpayer immediately terminated, and shall cause notice of such
finding and declaration to be given the taxpayer, together with a demand
for immediate payment of the tax for the taxable period so declared
terminated and of the tax for the preceding taxable year or so much of
such tax as is unpaid, whether or not the time otherwise allowed by law
for filing return and paying the tax has expired; and such taxes shall
thereupon become immediately due and payable. In any proceeding brought
to enforce payment of taxes made due and payable by virtue of the
provisions of this subdivision, the finding of the commissioner made as
herein provided, whether made after notice to the taxpayer or not, shall
be for all purposes presumptive evidence of jeopardy.
A. 10030 1021
(m) Reopening of taxable period. Notwithstanding the termination of
the taxable period of the taxpayer by the commissioner as provided in
subdivision (1) of this section, the commissioner may reopen such taxa-
ble period each time the taxpayer is found by the commissioner to have
received wages or net earnings from self-employment, within the current
taxable year, since the termination of such period. A taxable period so
terminated by the commissioner may be reopened by the taxpayer if he or
she files with the commissioner a true and accurate return of taxable
wages and net earnings from self-employment under this chapter for such
taxable period, together with such other information as the commissioner
may by regulation prescribe.
(n) Furnishing of bond where taxable year is closed by the commis-
sioner. Payment of taxes shall not be enforced by any proceedings under
the provisions of subdivision (1) of this section prior to the expira-
tion of the time otherwise allowed for paying such taxes if the taxpayer
furnishes, under regulations prescribed by the commissioner, a bond to
insure the timely making of returns with respect to, and payment of,
such taxes or any taxes for prior years.
§ 11-1938 Criminal penalties. (a) Attempt to evade tax. Any individ-
ual, corporation or partnership or any officer or employee of any corpo-
ration, or member or employee of any partnership, who, with intent to
evade any tax or any requirement of this chapter or any lawful require-
ment of the commissioner thereunder, shall fail to pay the tax, or to
make, render, sign or certify any return or declaration of estimated
tax, or to supply any information within the time required by or under
the provisions of this chapter, or who, with like intent, shall make,
render, sign or certify any false or fraudulent return, declaration or
statement, or shall supply any false or fraudulent information, or who
shall fail to comply with the provisions of subdivision (b) of section
11-1912 of this chapter after the service of a notice by the commission-
er thereunder, shall be guilty of a misdemeanor and shall, upon
conviction, be fined not to exceed five thousand dollars or be impri-
soned not to exceed one year, or both, at the discretion of the court.
(b) Limitations. Notwithstanding the provisions of section 30.10 of
the criminal procedure law or of any other law of this state, a prose-
cution for any offense under this section may be commenced at any time
not later than three years after the commission of such offense provided
that, if such offense is the failure to do an act required by or under
any provision of this chapter to be done before a certain date, a prose-
cution for such offense may be commenced not later than three years
after such date.
(c) Willful failure to withhold. Any individual, corporation or part-
nership or any officer or employee of any corporation, including a
dissolved corporation, or member or employee of any partnership, who
willfully fails to collect or pay over any withholding tax as required,
shall, in addition to other penalties provided by law, be guilty of a
misdemeanor, and, upon conviction thereof, shall be fined not to exceed
five thousand dollars or imprisoned not to exceed one year, or both.
(d) Two or more charges. In the prosecution of offenses under this
section, if there are two or more charges against any person or corpo-
ration, involving a violation or violations of any provision or
provisions of this chapter, whether for the same or different taxable
years, instead of returning several indictments or filing several infor-
mations, all of such charges may be joined in one indictment or informa-
tion, in separate counts, and if two or more indictments are found, or
two or more informations are filed, the court may order them to be
A. 10030 1022
consolidated. If a person or corporation shall be convicted of two or
more offenses constituting different crimes set forth in different
counts of one indictment or information, or in separate indictments or
informations consolidated as hereinbefore provided, the court may impose
a separate sentence for each offense, and if imprisonment is imposed,
the court may order any of such sentences to be served concurrently or
consecutively.
(e) Miscellaneous rules. Any prosecution under this section may be
conducted in any county where the person or corporation to whose tax
liability the proceeding relates resides, or has a place of business, or
in any county in which any such crime is committed. The corporation
counsel of the city shall have concurrent jurisdiction with any district
attorney in the prosecution of any offense under this section. If the
provisions of this section conflict with those contained in any other
law, this section shall control. The certificate of the commissioner to
the effect that a tax has not been paid, that a return or declaration of
estimated tax has not been filed, or that information has not been
supplied, as required by or under the provisions of this chapter, shall
be prima facie evidence that such tax has not been paid, that such
return or declaration has not been filed, or that such information has
not been supplied. All fines levied under this section shall be paid to
the commissioner and deposited in the same manner as revenues collected
or received under this chapter.
§ 11-1939 Armed forces relief provisions. (a) Time to be disregarded.
In the case of an individual serving in the armed forces of the United
States or serving in support of such armed forces, in an area designated
by the president of the United States by executive order as a "combat
zone" at any time during the period designated by the president by exec-
utive order as the period of combatant activities in such zone, or
hospitalized outside the state as a result of injury received while
serving in such an area during such time, the period of service in such
area, plus the period of continuous hospitalization outside the state
attributable to such injury, and the next one hundred eighty days there-
after, shall be disregarded in determining, under this chapter in
respect of the tax liability, including any interest, penalty, or addi-
tion to the tax, of such individual:
(1) Whether any of the following acts was performed within the time
prescribed therefor:
(A) filing any return of tax, except withholding tax;
(B) payment of any tax, except withholding tax, or any installment
thereof or of any other liability to the commissioner, in respect there-
of;
(C) filing a petition with the commissioner for credit or refund or
for redetermination of a deficiency, or application for review of a
decision rendered by the commissioner;
(D) allowance of a credit or refund of tax;
(E) filing a claim for credit or refund of tax;
(F) giving or making any notice or demand for the payment of any tax,
or with respect to any liability to the commissioner in respect of tax;
(G) collection, by the commissioner, by levy or otherwise of the
amount of any liability in respect of tax;
(H) bringing suit by the city, or any officer, on its behalf, in
respect of any liability in respect of tax; and
(I) any other act required or permitted under this chapter or speci-
fied in the regulations prescribed under this section by the commission-
er.
A. 10030 1023
(2) The amount of any credit or refund, including interest.
(b) Action taken before ascertainment of right to benefits. The
collection of the tax imposed by this chapter or of any liability to the
commissioner in respect of such tax, or any action or proceeding by or
on behalf of the commissioner in connection therewith, may be made,
taken, begun, or prosecuted in accordance with law, without regard to
the provisions of subdivision (a) of this section, unless prior to such
collection, action, or proceeding it is ascertained that the person
concerned is entitled to the benefit of subdivision (a) of this section.
(c) Members of armed forces dying in action. In the case of any person
who dies while in active service as a member of the armed forces of the
United States, if such death occurred while serving in a combat zone
during a period of combatant activities in such zone, as described in
subdivision (a) of this section, or as a result of wounds, disease or
injury incurred while so serving, the tax imposed by this chapter shall
not apply with respect to the taxable year in which falls the date of
his or her death, or with respect to any prior taxable year ending on or
after the first day so served in a combat zone, and no returns shall be
required in behalf of such person or his or her estate for such year;
and the tax for any such taxable year which is unpaid at the date of
death, including interest, additions to tax and penalties, if any, shall
not be assessed and, if assessed, the assessment shall be abated and, if
collected, shall be refunded to the legal representative of such estate
if one has been appointed and has qualified, or, if no legal represen-
tative has been appointed or has qualified, to the surviving spouse.
§ 11-1940 General powers of commissioner. (a) General. The commission-
er shall administer and enforce the tax imposed by this chapter and the
commissioner is authorized to make such rules and regulations, and to
require such facts and information to be reported, as the commissioner
may deem necessary to enforce the provisions of this chapter and the
commissioner may delegate his or her powers and functions under all
subchapters of this chapter to one of his or her deputies or to any
employee or employees of his or her department.
(b) Examination of books and witnesses. The commissioner for the
purpose of ascertaining the correctness of any return, or for the
purpose of making an estimate of taxable wages and net earnings from
self-employment of any person, shall have power to examine or to cause
to have examined, by any agent or representative designated by him or
her for that purpose, any books, papers, records or memoranda bearing
upon the matters required to be included in the return, and may require
the attendance of the person rendering the return or any officer or
employee of such person, or the attendance of any other person having
knowledge in the premises, may take testimony and require proof material
for the commissioner's information, with power to administer oaths to
such person or persons and may issue commissions for the examination of
witnesses who are out of the state or unable to attend before the
commissioner or excused from attendance, and for the production of
books, papers, records or memoranda.
(c) Abatement authority. The commissioner, of his or her own motion,
may abate any small unpaid balance of an assessment of tax, or any
liability in respect thereof, if the commissioner determines under
uniform rules prescribed by him or her that the administration and
collection costs involved would not warrant collection of the amount
due. The commissioner may also abate, of his or her own motion, the
unpaid portion of the assessment of any tax or any liability in respect
thereof, which is excessive in amount, or is assessed after the expira-
A. 10030 1024
tion of the period of limitation properly applicable thereto, or is
erroneously or illegally assessed. No claim for abatement under this
subdivision shall be filed by a taxpayer.
(d) Special refund authority. Where no questions of fact or law are
involved and it appears from the records of the commissioner that any
moneys have been erroneously or illegally collected from any taxpayer or
other person, or paid by such taxpayer or other person under a mistake
of facts, pursuant to the provisions of this chapter, the commissioner
at any time, without regard to any period of limitations, shall have the
power, upon making a record of his or her reasons therefor in writing,
to cause such moneys so paid and being erroneously and illegally held to
be refunded.
(e) Cooperation with the United States and other states. Notwith-
standing the provisions of section 11-1942 of this subchapter, the
commissioner may permit the secretary of the treasury of the United
States or such secretary's delegates, or the proper tax officer of any
other state imposing an income tax upon the income of individuals, or
the authorized representative of either such officer, to inspect any
return filed under this chapter, or may furnish to such officer or his
or her authorized representative an abstract of any such return or
supply him or her with information concerning an item contained in any
such return, or disclosed by any investigation of tax liability under
this chapter, but such permission shall be granted or such information
furnished to such officer or his or her representative only if the laws
of the United States or of such state, as the case may be, grant
substantially similar privileges to the commissioner and such informa-
tion is to be used for tax purposes only; and provided further the
commissioner may furnish to the commissioner of internal revenue or his
or her authorized representative such returns filed under this chapter
and other tax information as he or she may consider proper for the use
in court actions or proceedings under the internal revenue code, whether
civil or criminal, where a written request therefor has been made to the
commissioner by the secretary of the treasury of the United States or by
his or her delegates, provided the laws of the United States grant
substantially similar powers to the secretary of the treasury of the
United States or such secretary's delegates. Where the commissioner has
so authorized use of returns and other information in such actions or
proceedings, officers and employees of the department of taxation and
finance may testify in such actions or proceedings in respect to such
returns or other information.
§ 11-1941 Joint enforcement. (1) If there is assessed a tax under this
chapter and there is also assessed a tax or taxes against the same
taxpayer pursuant to article twenty-two of the tax law and if the
commissioner of the tax imposed by this chapter takes action under the
tax law with respect to the enforcement and collection of the tax or
taxes assessed under such tax law, the commissioner shall, wherever
possible, accompany such action with a similar action under similar
enforcement and collection provisions of this chapter.
(2) Any monies collected as a result of such joint action shall be
deemed to have been collected in proportion in the amounts due, includ-
ing tax, penalties, interest and additions to tax under article twenty-
two of the tax law and under this chapter.
(3) Whenever the commissioner takes any action with respect to a defi-
ciency of personal income tax, under article twenty-two of the tax law
other than the action set forth in subdivision one of this section the
A. 10030 1025
commissioner may, in his or her discretion, accompany such action with a
similar action under this chapter.
§ 11-1942 Secrecy requirement and penalties for violation. 1. Except
in accordance with proper judicial order or as otherwise provided by
law, it shall be unlawful for the commissioner or any other officer or
employee of the department of finance of the city, any person engaged or
retained by such commissioner or department on an independent contract
basis, any depository to which any return may be delivered as provided
in subdivision two of this section, any officer or employee of such
depository, or any person who, pursuant to this section, is permitted to
inspect any report or return or to whom a copy, an abstract or a portion
of any report or return is furnished, or to whom any information
contained in any report or return is furnished, to divulge or make known
in any manner the amount of wages or earnings or any particulars set
forth or disclosed in any report or return required under this chapter.
The commissioner or any other officer and employee charged with the
custody of such reports and returns shall not be required to produce any
of them or evidence of anything contained in them in any action or
proceeding in any court, except on behalf of the city in an action or
proceeding under the provisions of this chapter or in any other action
or proceeding involving the collection of a tax due under this chapter
to which the city is a party or a claimant, or on behalf of any party to
any action or proceeding under the provisions of this chapter when the
reports, returns or facts shown thereby are directly involved in such
action or proceeding, in any of which events the court may require the
production of, and may admit in evidence, so much of said reports,
returns or of the facts shown thereby, as are pertinent to the action or
proceeding and no more; except as provided in subdivision (e) of section
11-1940 of this subchapter. The commissioner may, nevertheless, publish
a copy or a summary of any determination or decision rendered after the
hearing required under section 11-1931 of this subchapter of this chap-
ter. Nothing in this section shall be construed to prohibit the deliv-
ery to a taxpayer or the taxpayer's duly authorized representative of a
certified copy of any return or report filed in connection with his or
her tax or to prohibit the publication of statistics so classified as to
prevent the identification of particular reports or returns and the
items thereof, or the inspection by the legal representatives of the
city of the report or return of any taxpayer who shall bring action to
set aside or review the tax based thereon, or against whom an action or
proceeding under this chapter has been recommended by the commissioner.
Reports and returns shall be preserved for three years and thereafter
until the commissioner orders them to be destroyed. Any violation of
the provisions of this section shall be punished by a fine not exceeding
one thousand dollars or by imprisonment not exceeding one year, or both,
at the discretion of the court, and if the offender be the commissioner
or any other officer or employee of the city, he or she shall be
dismissed from office and be incapable of holding any public office in
the city or the state for a period of five years thereafter.
2. Notwithstanding the provisions of subdivision one of this section,
the commissioner of finance, in his or her discretion, may require or
permit any or all individuals, estates or trusts, liable for any tax
imposed by this chapter, to make payments on account of estimated tax
and payment of any tax, penalty or interest imposed by this chapter to
banks, banking houses or trust companies designated by the commissioner
of finance and to file declarations of estimated tax and reports and
returns with such banks, banking houses or trust companies as agents of
A. 10030 1026
the commissioner of finance, in lieu of making any such payment directly
to the commissioner of finance. However, the commissioner of finance
shall designate only such banks, banking houses or trust companies as
are depositories or financial agents of Staten Island.
§ 11-1943 Provisions not applicable. The provisions contained in this
subchapter shall not be applicable with respect to taxes imposed for
taxable periods commencing on or after January first, nineteen hundred
seventy-six but, with respect to the tax imposed for such periods the
provisions contained in part VI of article twenty-two of the tax law and
sections six hundred fifty-three, six hundred fifty-eight, six hundred
sixty-two and thirteen hundred eleven of the tax law including the
provisions of judicial review by a proceeding under article seventy-
eight of the civil practice law and rules shall be applicable with the
same force and effect as if those provisions had been incorporated in
full in this section except where inconsistent with the provisions of
this chapter.
§ 11-1944 Deposit and disposition of revenues by commissioner. All
taxes, penalties and interest imposed under this chapter which are paid
to or collected by the commissioner of finance shall be deposited by the
commissioner of finance in the general fund of the city.
§ 11-1945 Effect of invalidity in part; inconsistencies with other
laws. (a) If any clause, sentence, paragraph, subdivision, section,
provision or other portion of this chapter or the application thereof to
any person or circumstances shall be held to be invalid, such holding
shall not affect, impair or invalidate the remainder of this chapter or
the application of such portion held invalid, to any other person or
circumstances, but shall be confined in its operation to the clause,
sentence, paragraph, subdivision, section, provision or other portion
thereof directly involved in such holding or to the person and circum-
stances therein involved.
(b) If any provision of this chapter is inconsistent with, in conflict
with, or contrary to any other provision of law, such provision of this
chapter shall prevail over such other provision and such other provision
shall be deemed to have been amended, superseded or repealed to the
extent of such inconsistency, conflict or contrariety.
CHAPTER 20
SALES, EXCISE AND RELATED TAXES
SUBCHAPTER 1
GENERAL SALES AND COMPENSATING USE TAXES
§ 11-2001 Imposition of general sales and compensating use taxes. (a)
There are hereby imposed and there shall be paid all of the sales and
compensating use taxes described in article twenty-eight of the tax law
as authorized by subdivision (a) of section twelve hundred ten of the
tax law, at the rate of four and one-half percent, provided that the
taxes described in paragraph six of subdivision (c) of section eleven
hundred five of the tax law shall be imposed and paid at the rate of six
percent.
(b) Notwithstanding any contrary provision of this section or other
law, this section: (1) does not impose tax on (i) receipts from the
sale of the services of laundering, dry-cleaning, tailoring, weaving,
pressing, shoe repairing and shoe shining described in subparagraph (ii)
of paragraph three of subdivision (c) of section eleven hundred five of
the tax law; (ii) receipts from the sale of services described in para-
graph six of subdivision (c) of section eleven hundred five of the tax
A. 10030 1027
law at facilities owned and operated by the city or an agency or instru-
mentality of the city or a public corporation the majority of whose
members are appointed by the mayor or the city council or both of them;
(2) for purposes of the tax described in subdivision (e) of section
eleven hundred five of the tax law, defines "permanent resident" to mean
any occupant of any room or rooms in a hotel for at least one hundred
eighty consecutive days with regard to the period of such occupancy; (3)
does not omit from the tax described in paragraph one of subdivision (f)
of section eleven hundred five of the tax law charges to a patron for
admission to, or use of, facilities for sporting activities in which
such patron is to be a participant, such as bowling alleys and swimming
pools; (4) provides the clothing and footwear exemption in paragraph
thirty of subdivision (a) of section eleven hundred fifteen of the tax
law; (5) omits the exemption provided in paragraph forty-one of subdivi-
sion (a) of section eleven hundred fifteen of the tax law; (6) omits the
exemption provided in subdivision (c) of section eleven hundred fifteen
of the tax law insofar as it applies to fuel, gas, electricity, refrig-
eration and steam, and gas, electric, refrigeration and steam service of
whatever nature for use or consumption directly and exclusively in the
production of gas, electricity, refrigeration or steam; and (7) omits
the provision for refund or credit contained in clause six of subdivi-
sion (a) of section eleven hundred nineteen of the tax law.
(c) The taxes imposed by this section shall be in addition to any and
all other taxes authorized or imposed under any other provision of law.
(d) The taxes imposed by this section shall be administered and
collected by the state commissioner of taxation and finance as provided
in articles twenty-eight and twenty-nine of the tax law.
(e) The provisions of articles twenty-eight and twenty-nine of the tax
law relating or applicable to the taxes imposed by this section, includ-
ing the applicable definitions, transitional provisions, limitations,
special provisions, exemptions, exclusions, refunds, credits and admin-
istrative provisions, so far as those provisions can be made applicable
to the taxes imposed by this section, shall apply to the taxes imposed
by this section with the same force and effect as if those provisions
had been incorporated in full into this section and had expressly
referred to the taxes imposed by this section, except to the extent that
any provision of article twenty-eight or twenty-nine of the tax law is
either inconsistent with or not relevant to the taxes imposed by this
section.
(f) Net collections from the taxes imposed by this section paid to
this city by the state comptroller shall be credited to and deposited in
the general fund of this city, but no part of such revenues may be
expended unless appropriated in the annual budget of this city.
(g) If any provision of this section or the application thereof shall
for any reason be adjudged by any court of competent jurisdiction to be
invalid, such judgment shall not affect, impair or invalidate the
remainder of this section but shall be confined in its operation to the
provision thereof directly involved in the controversy in which such
judgment shall have been rendered and the application of such provision
to other persons or circumstances shall not be affected thereby.
§ 11-2002 Imposition of special sales taxes. (a) There are hereby
imposed and there shall be paid sales taxes at the rate of four and
one-half percent on receipts from every sale of the services of beauty,
barbering, hair restoring, manicuring, pedicuring, electrolysis, massage
services and similar services, and every sale of services by weight
control salons, health salons, gymnasiums, Turkish and sauna bath and
A. 10030 1028
similar establishments and every charge for the use of such facilities,
whether or not any tangible personal property is transferred in conjunc-
tion therewith; but excluding services rendered by a physician, osteo-
path, dentist, nurse, physiotherapist, chiropractor, podiatrist, optome-
trist, ophthalmic dispenser or a person performing similar services
licensed under title eight of the education law, as amended, and exclud-
ing such services when performed on pets and other animals, as author-
ized by subdivision (a) of section twelve hundred twelve-a of the tax
law. Provided, however, that the tax hereby imposed shall not be imposed
after November thirtieth, two thousand twenty-six.
(b) The taxes imposed by this section shall be in addition to any and
all other taxes authorized or imposed under any other provision of law.
(c) The taxes imposed by this section shall be administered and
collected by the state commissioner of taxation and finance as provided
in articles twenty-eight and twenty-nine of the tax law.
(d) The provisions of articles twenty-eight and twenty-nine of the tax
law relating or applicable to the taxes imposed by this section, includ-
ing the applicable definitions, transitional provisions, limitations,
special provisions, exemptions, exclusions, refunds, credits and admin-
istrative provisions, so far as those provisions can be made applicable
to the taxes imposed by this section, shall apply to the taxes imposed
by this section with the same force and effect as if those provisions
had been incorporated in full into this section and had expressly
referred to the taxes imposed by this section, except to the extent that
any provision of article twenty-eight or twenty-nine of the tax law is
either inconsistent with or not relevant to the taxes imposed by this
section.
(e) Net collections from the taxes imposed by this section paid to
this city by the state comptroller shall be credited to and deposited in
the general fund of this city, but no part of such revenues may be
expended unless appropriated in the annual budget of this city.
(f) If any provision of this section or the application thereof shall
for any reason be adjudged by any court of competent jurisdiction to be
invalid, such judgment shall not affect, impair or invalidate the
remainder of this section but shall be confined in its operation to the
provision thereof directly involved in the controversy in which such
judgment shall have been rendered and the application of such provision
to other persons or circumstances shall not be affected thereby.
§ 11-2032 Construction and enforcement. This subchapter shall be
construed and enforced in conformity with articles twenty-eight and
twenty-nine of the tax law of the state of New York pursuant to which
the same is enacted.
SUBCHAPTER 3
SALES TAX ON CREDIT SERVICES,
PROTECTIVE AND DETECTIVE SERVICES,
INTERIOR DECORATING AND DESIGNING
SERVICES, AND INTERIOR CLEANING AND MAINTENANCE SERVICES
§ 11-2039 Definitions. (a) "Person" includes an individual, partner-
ship, society, association, joint-stock company, corporation, estate,
receiver, trustee, assignee, referee, and any other person acting in a
fiduciary or representative capacity, whether appointed by a court or
otherwise, and any combination of the foregoing.
(b) When used in this subchapter for the purposes of the taxes imposed
by this subchapter, the following terms shall mean:
A. 10030 1029
(1) "Purchaser." A person who purchases property or to whom are
rendered services, the receipts from which are taxable under this
subchapter.
(2) "Receipt." The amount of the sale price of any property and the
charge for any service taxable under this subchapter, valued in money,
whether received in money or otherwise, including any amount for which
credit is allowed by the vendor to the purchaser, without any deduction
for expenses or early payment discounts, but excluding any credit for
tangible personal property accepted in part payment and intended for
resale.
(3) "Sale." Any transfer of title or possession or both, exchange or
barter, rental, lease or license to use or consume, conditional or
otherwise, in any manner or by any means whatsoever for a consideration,
or any agreement therefor, including the rendering of any service, taxa-
ble under this subchapter, for a consideration or any agreement there-
for.
(4) "Vendor." A person making sales of tangible personal property or
services, the receipts from which are taxed by this subchapter.
(5) "Tax commission." Tax commission of the state of New York.
(6) "Tax law." Tax law of the state of New York.
§ 11-2040 Imposition of tax. (a) There is hereby imposed within the
city and there shall be paid a tax at the rate of four and one-half
percent upon the receipts from every sale, except for resale, of credit
rating and credit reporting services, including, but not limited to,
those services provided by mercantile and consumer credit rating or
reporting bureaus or agencies, whether rendered in written or oral form
or in any other manner, except to the extent otherwise taxable under
article twenty-eight of the tax law; provided, however, that the tax
hereby imposed shall not be imposed after November thirtieth, two thou-
sand twenty-six, on receipts from sales of the services specified in
this subdivision.
(b) Wages, salaries and other compensation paid by an employer to an
employee for performing as an employee the services described in subdi-
vision (a) of this section are not receipts subject to the taxes imposed
by such subdivision.
(c) Any taxes imposed by this subchapter are in addition to any other
tax which the city may impose or may be imposing pursuant to any law.
§ 11-2041 Transitional provisions. The taxes imposed under subdivision
(a) of section 11-2040 of this subchapter shall be paid with respect to
receipts from all sales of services on or after September first, nine-
teen hundred seventy-five although rendered or agreed to be rendered
under a prior contract. Where a service is sold on a monthly, quarterly,
yearly or other term basis, the charge for such service shall be subject
to tax under this subchapter to the extent that such charge is applica-
ble to any period on or after September first, nineteen hundred seven-
ty-five, and such charge shall be apportioned on the basis of the ratio
of the number of days falling within such period to the total number of
days in the full term or period.
§ 11-2042 Exempt organizations. Except as otherwise provided in this
section, any sale by or to any of the following shall not be subject to
the taxes imposed by this subchapter:
(1) The state of New York, or any of its agencies, instrumentalities,
public corporations, including a public corporation created pursuant to
agreement or compact with another state or Canada, or political subdivi-
sions where it is the purchaser, user or consumer, or where it is a
A. 10030 1030
vendor of services or property of a kind not ordinarily sold by private
persons;
(2) The United States of America, and any of its agencies and instru-
mentalities, insofar as it is immune from taxation where it is the
purchaser, user or consumer, or where it sells services or property of a
kind not ordinarily sold by private persons;
(3) The United Nations or any international organization of which the
United States of America is a member where it is the purchaser, user or
consumer, or where it sells services or property of a kind not ordinar-
ily sold by private persons;
(4) Any corporation, association, trust, or community chest, fund or
foundation, organized and operated exclusively for religious, charita-
ble, scientific, testing for public safety, literary or educational
purposes, or for the prevention of cruelty to children or animals, no
part of the net earnings of which inures to the benefit of any private
shareholder or individual, no substantial part of the activities of
which is carrying on propaganda, or otherwise attempting to influence
legislation, and which does not participate in, or intervene in, includ-
ing the publishing or distributing of statements any political campaign
on behalf of any candidate for public office;
(5) A post or organization of war veterans, or an auxiliary unit or
society of, or a trust or foundation for, any such post or organization:
(A) organized in this state,
(B) at least seventy-five percent of the members of which are war
veterans and substantially all of the other members of which are indi-
viduals who are veterans, but not war veterans, or are cadets, or are
spouses, widows or widowers of war veterans or such individuals, and
(C) no part of the net earnings of which inures to the benefit of any
private shareholder or individual.
§ 11-2043 Refunds or credits based on proof of certain uses. A refund
or credit equal to the amount of the sales or compensating use tax
imposed by section eleven hundred seven of the tax law or by section
11-2001 of this chapter, as the case may be, and paid on the sale or use
of tangible personal property which is later used by such purchaser in
performing a service subject to tax under this subchapter shall be
allowed such purchaser against the tax imposed by this subchapter and
collected by such person on the sale of such services if such property
has become a physical component part of the property upon which the
service is performed or has been transferred to the purchaser of the
service in conjunction with the performance of the service subject to
tax; provided, however, that any such refund or credit shall be without
interest.
§ 11-2044 Administration and collection. The taxes imposed by section
11-2040 of this subchapter shall be administered and collected by the
tax commission in the same manner as the taxes imposed by article twen-
ty-eight of the tax law are administered and collected by such commis-
sion. All of the provisions of such article relating to or applicable
to the administration and collection of the taxes imposed by that arti-
cle shall apply to the taxes imposed by this subchapter, including
sections eleven hundred one, eleven hundred eleven, and sections eleven
hundred thirty-one through eleven hundred forty-seven inclusive, with
the same force and effect as if those provisions had been incorporated
in full into this subchapter and had expressly referred to the taxes
imposed by this subchapter, except as otherwise provided in section
twelve hundred fifty of the tax law. For purposes of this subchapter,
A. 10030 1031
the term "tax" in part IV of such article twenty-eight of the tax law
shall include the taxes imposed by this subchapter.
§ 11-2045 Deposit and disposition of revenue. (a) The tax commission
shall deposit daily to the credit of the comptroller of the state of New
York, all taxes, penalties and interest collected under this subchapter
in such responsible banks, banking houses or trust companies as may be
designated by the comptroller. Such deposits shall be kept in trust for
the city and separate and apart from all other monies in the possession
of the comptroller. The comptroller shall require adequate security
from all such depositories. Of the revenue collected under this subchap-
ter the comptroller shall retain in his or her hands such amount as the
commissioner of taxation and finance of the state of New York may deter-
mine to be necessary for refunds under this subchapter and for reason-
able costs of the tax commission in administering, collecting and
distributing the taxes under this subchapter, out of which the comp-
troller shall pay any refunds made under the provisions of this subchap-
ter. The comptroller, after reserving such refund fund and such costs,
shall on or before the twelfth day of each month, pay to the commission-
er of finance of this city all taxes, interest and penalties collected
under this subchapter and remaining to the comptroller's credit in such
banks, banking houses or trust companies at the close of business on the
last day of the preceding month, provided, however, that the comptroller
shall on or before the last day of June and December make a partial
payment consisting of the collections made during and including the
first twenty-five days of said months to the commissioner of finance of
this city. The amount so payable shall be certified to the comptroller
by the president of the tax commission or such president's delegate, who
shall not be held liable for any inaccuracy in such certificate. Where
the amount so paid over in any such distribution is more or less than
the amount then due to this city, the amount of the overpayment or
underpayment shall be certified to the comptroller by the president of
the tax commission or such president's delegate, who shall not be held
liable for any inaccuracy in such certificate. The amount of the over-
payment shall be so certified to the comptroller as soon after the
discovery of the overpayment or underpayment as reasonably possible and
subsequent payments and distributions by the comptroller to this city
shall be adjusted by subtracting the amount of any such overpayment from
or by adding the amount of any such underpayment to such number of
subsequent payments and distributions as the comptroller and the presi-
dent of the state tax commission shall consider reasonable in view of
the amount of the overpayment or underpayment and all other facts and
circumstances.
(b) All payments to the commissioner of finance pursuant to subdivi-
sion (a) of this section shall be credited to and deposited in the
general fund of this city, but no part of such revenues may be expended
unless appropriated in the annual budget of this city.
§ 11-2046 Construction and enforcement. This subchapter shall be
construed and enforced in conformity with articles twenty-eight and
twenty-nine of the tax law of the state of New York pursuant to which it
is enacted.
§ 11-2047 Effective date. This subchapter shall take effect September
first, nineteen hundred seventy-five except that certificates of regis-
tration may be filed with the state tax commission and certificates of
authority to collect tax may be issued by the state tax commission prior
to such date.
A. 10030 1032
SUBCHAPTER 4
ADDITIONAL PARKING TAX
§ 11-2048 Definitions. (a) "Person" includes an individual, partner-
ship, society, association, joint-stock company, corporation, estate,
receiver, trustee, assignee, referee, and any other person acting in a
fiduciary or representative capacity, whether appointed by a court or
otherwise, and any combination of the foregoing.
(b) When used in this subchapter for the purpose of the taxes imposed
by this subchapter, the following terms shall mean:
(1) "Purchaser." A person who purchased property or to whom are
rendered services, the receipts from which are taxable under this
subchapter.
(2) "Receipt." The amount of the sale price of any property and the
charge for any service taxable under this subchapter, valued in money,
whether received in money or otherwise, including any amount for which
credit is allowed by the vendor to the purchaser, without any deduction
for expenses or early payment discounts, but excluding any credit for
tangible personal property accepted in part payment and intended for
resale.
(3) "Sale." Any transfer of title or possession or both, exchange or
barter, rental, lease or license to use or consume, conditional or
otherwise, in any manner or by any means whatsoever for a consideration,
or any agreement therefor, including the rendering of any service, taxa-
ble under this subchapter, for a consideration or any agreement there-
for.
(4) "Vendor." A person making sales of tangible personal property or
services, the receipts from which are taxed by this subchapter.
(5) "Tax commission." Tax commission of the state of New York.
(6) "Tax law." Tax law of the state of New York.
§ 11-2049 Imposition of tax. On and after September first, nineteen
hundred eighty, there is hereby imposed within the city of New York, and
there shall be paid, a tax at the rate of eight percent on receipts from
every sale of the service of providing parking, garaging or storing for
motor vehicles by persons operating a garage, other than a garage which
is part of premises occupied solely as a private one or two family
dwelling, parking lot or other place of business engaged in providing
parking, garaging or storing for motor vehicles, in every county within
the city of New York with a population density in excess of fifty thou-
sand persons per square mile, as determined by reference to the latest
federal census; provided, however, that receipts for such services paid
to a homeowner's association by its members or receipts paid by members
of a homeowner's association to a person leasing the parking facility
from the homeowner's association shall not be subject to the tax imposed
by this section. For purposes of this section, a homeowner's association
is an association, including a cooperative housing or apartment corpo-
ration, (i) the membership of which is comprised exclusively of owners
or residents of residential dwelling units, including owners of units in
a condominium, and including shareholders in a cooperative housing or
apartment corporation, where such units are located in a defined
geographical area such as a housing development or subdivision; and (ii)
which owns or operates a garage, parking lot or other place of business
engaged in providing parking, garaging or storing for motor vehicles
located in such area for use, whether or not exclusive, by such owners
or residents. The tax imposed on the receipts described in this section
is in addition to the tax imposed on such receipts under subchapter one
A. 10030 1033
of this chapter or section eleven hundred seven of the tax law, as the
case may be.
§ 11-2050 Transitional provisions. The taxes imposed by this subchap-
ter shall be paid with respect to receipts from all sales of services on
or after September first, nineteen hundred eighty although rendered or
agreed to be rendered under a prior contract. Where a service is sold
on a monthly, quarterly, yearly or other term basis, the charge for such
service shall be subject to tax under this subchapter to the extent that
such charge is applicable to any period on or after September first,
nineteen hundred eighty, and such charge shall be apportioned on the
basis of the ratio of the number of days falling within such period to
the total number of days in the full term or period.
§ 11-2051 Exempt organizations and individuals. (a) Except as other-
wise provided in this section, any sale by or to any of the following
shall not be subject to the taxes imposed by this subchapter:
(1) The state of New York, or any of its agencies, instrumentalities,
public corporations, including a public corporation created pursuant to
agreement or compact with another state or Canada, or political subdivi-
sions where it is the purchaser, user or consumer, or where it is a
vendor of services of a kind not ordinarily sold by private persons;
(2) The United States of America, and any of its agencies and instru-
mentalities, insofar as it is immune from taxation where it is the
purchaser, user or consumer or where it sells services of a kind not
ordinarily sold by private persons;
(3) The United Nations or any international organization of which the
United States of America is a member where it is the purchaser, user or
consumer, or where it sells services of a kind not ordinarily sold by
private persons;
(4) Any corporation, association, trust, or community chest, fund or
foundation, organized and operated exclusively for religious, charita-
ble, scientific, testing for public safety, literary or educational
purposes, or to foster national or international amateur sports competi-
tion, but only if no part of its activities involve the provision of
athletic facilities or equipment, or for the prevention of cruelty to
children or animals, no part of the net earnings of which inures to the
benefit of any private shareholder or individual, no substantial part of
the activities of which is carrying on propaganda, or otherwise attempt-
ing to influence legislation, except as otherwise provided in subsection
(h) of section five hundred one of the United States internal revenue
code of nineteen hundred fifty-four, as amended, and which does not
participate in, or intervene in, including the publishing or distribut-
ing of statements, any political campaign on behalf of any candidate for
public office;
(5) A post or organization of past or present members of the armed
forces of the United States, or an auxiliary unit or society of, or a
trust or foundation for, any such post or organization:
(A) organized in this state,
(B) at least seventy-five percent of the members of which are past or
present members of the armed forces of the United States and substan-
tially all of the other members of which are individuals who are cadets
or are spouses, widows or widowers of past or present members of the
armed forces of the United States or of cadets, and
(C) no part of the net earnings of which inures to the benefit of any
private shareholder or individual;
(6) The following Indian nations or tribes residing in New York state:
Cayuga, Oneida, Onondaga, Poospatuck, Saint Regis Mohawk, Seneca, Shin-
A. 10030 1034
necock, Tonawanda and Tuscarora, where it is the purchaser, user or
consumer;
(7) A not-for-profit corporation operating as a health maintenance
organization subject to the provisions of article forty-four of the
public health law; and
(8) Cooperative and foreign corporations doing business in this state
pursuant to the rural electric cooperative law.
(b) Nothing in this section shall exempt sales of the service of
providing parking, garaging or storing for motor vehicles by an organ-
ization described in paragraph four or paragraph five of subdivision (a)
of this section operating a garage, other than a garage which is part of
premises occupied solely as a private one-family or two-family dwelling,
parking lot or other place of business engaged in providing parking,
garaging or storing for motor vehicles.
(c) (1) For purposes of paragraph four of subdivision (a) of this
section, in the case of a qualified amateur sports organization (A) the
requirement of such paragraph that no part of its activities involve the
provision of athletic facilities or equipment shall not apply, and (B)
such organization shall not fail to meet the requirement of such para-
graph merely because its membership is local or regional in nature.
(2) For purposes of this subdivision, the term "qualified amateur
sports organization" means any organization organized and operated
exclusively to foster national or international amateur sports competi-
tion if such organization is also organized and operated primarily to
conduct national or international competition in sports or to support
and develop amateur athletes for national or international competition
in sports.
(d) The tax imposed by this subchapter shall not apply to any sale of
services to an individual resident of the county in which such tax is
imposed when such services are rendered on a monthly or longer-term
basis at the principal location for the parking, garaging or storing of
a motor vehicle owned or leased, but only in the case of a lease for a
term of one year or more, by such individual resident. For purposes of
this subdivision, the term "individual resident" means a natural person
who maintains in such county a permanent place of abode which is such
person's primary residence; the term "motor vehicle" means a motor vehi-
cle which is registered pursuant to the vehicle and traffic law at the
address of the primary residence referred to in this subdivision, or
which is registered pursuant to the vehicle and traffic law and leased
to an individual resident at the address of the primary residence
referred to in this subdivision, and which is not used in carrying on
any trade, business or commercial activity; and the term "lease for a
term of one year or more" shall not include any lease the term of which
is less than one year, irrespective of the fact that the cumulative
period for which such lease may be in effect is one year or more as the
result of the right to exercise an option to renew or other like
provision.
§ 11-2052 Administration and collection; penalties; refunds. (a) The
taxes imposed by this subchapter shall be administered and collected by
the tax commission in the same manner as the taxes imposed by article
twenty-eight of the tax law are administered and collected by such
commission. All of the provisions of such article relating to or appli-
cable to the administration and collection of the taxes imposed by that
article shall apply to the taxes imposed by this subchapter, including
section eleven hundred one and sections eleven hundred thirty-one
through eleven hundred forty-seven inclusive, with the same force and
A. 10030 1035
effect as if those provisions had been incorporated in full into this
subchapter and had expressly referred to the taxes imposed by this
subchapter, except to the extent that any provisions of such article
twenty-eight are either inconsistent with a provision of this subchap-
ter, or of article twenty-nine of the tax law, or are not relevant to
this subchapter or to article twenty-nine of the tax law. For purposes
of this subchapter, the term "tax" in part IV of such article twenty-
eight of the tax law shall include the taxes imposed by this subchapter.
(b) Notwithstanding subdivision (a) of this section or any other
provision of law to the contrary, the tax commission shall, subject to
such terms and conditions as it may consider necessary, delegate to the
commissioner of finance the power and authority to develop and adminis-
ter reasonable and necessary procedures, including the use of exemption
certificates for presentation to vendors, for determining entitlement to
exemption from tax under subdivision (d) of section 11-2051 of this
subchapter, and to prescribe, subject to the approval of the tax commis-
sion, rules and regulations necessary and appropriate in carrying out
such responsibilities.
(c) Any person who, in violation of any provision of subdivision (d)
of section 11-2051 of this subchapter or any rule or regulation promul-
gated thereunder, obtains or uses a certificate of exemption relating to
the exemption allowed by such subdivision, shall, if such violation was
due to negligence or intentional disregard of such provision or rule or
regulation, but without intent to defraud, be liable for a penalty of
not more than one hundred dollars for each such violation, and, if such
violation was due to fraud, be liable for a penalty of not more than
five hundred dollars for each such violation. The commissioner of
finance shall have the power, in his or her discretion, to waive, reduce
or compromise any penalty imposed pursuant to this subdivision. The
penalties authorized by this subdivision shall be in addition to any
penalty provided by section eleven hundred forty-five of the tax law,
and shall be paid and disposed of, and, if unpaid, shall be determined,
assessed, collected and enforced, in the same manner as the taxes
imposed by this subchapter.
(d) Notwithstanding subdivision (d) of section 11-2051 of this
subchapter, section eleven hundred thirty-nine of the tax law or any
other provision of law to the contrary, an individual resident shall not
be entitled to a refund or credit with respect to any amount of tax
which was paid to a vendor prior to the date such individual resident
presented to the vendor a valid certificate of exemption from such tax.
§ 11-2053 Deposit and disposition of revenue. (a) The tax commission
shall deposit daily to the credit of the comptroller of the state of New
York, all taxes, penalties and interest collected under this subchapter
in such responsible banks, banking houses or trust companies as may be
designated by the comptroller. Such deposits shall be kept in trust for
the city and separate and apart from all other monies in the possession
of the comptroller. The comptroller shall require adequate security
from all such depositories. Of the revenue collected under this
subchapter the comptroller shall retain in his or her hands such amount
as the commissioner of taxation and finance of the state of New York may
determine to be necessary for refunds under this subchapter and for
reasonable costs of the tax commission in administering, collecting and
distributing the taxes under this subchapter, out of which the comp-
troller shall pay any refunds made under the provisions of this subchap-
ter. The comptroller, after reserving such refund fund and such costs
shall, on or before the twelfth day of each month, pay to the commis-
A. 10030 1036
sioner of finance of this city all taxes, interest and penalties
collected under this subchapter during the next preceding calendar month
and remaining to the comptroller's credit in such banks, banking houses
or trust companies at the close of business on the last day of such
preceding month, provided, however, that the comptroller shall on or
before the last day of June and December make a partial payment consist-
ing of the collections made during and including the first twenty-five
days of said months to the commissioner of finance of this city. The
amount so payable shall be certified to the comptroller by the president
of the tax commission or such president's delegate, who shall not be
held liable for any inaccuracy in such certificate. Provided, however,
any such certification may be based on such information as may be avail-
able to the tax commission at the time such certificate must be made
under this section and may be estimated on the basis of percentages or
other indices calculated from distributions for prior periods. Where the
amount so paid over in any such distribution is more or less than the
amount then due to this city, the amount of the overpayment or underpay-
ment shall be certified to the comptroller by the president of the tax
commission or such president's delegate, who shall not be held liable
for any inaccuracy in such certificate. The amount of the overpayment or
underpayment shall be so certified to the comptroller as soon after the
discovery of the overpayment or underpayment as reasonably possible and
subsequent payments and distributions by the comptroller to this city
shall be adjusted by subtracting the amount of any such overpayment from
or by adding the amount of any such underpayment to such number of
subsequent payments and distributions as the comptroller and the presi-
dent of the tax commission shall consider reasonable in view of the
amount of the overpayment or underpayment and all other facts and
circumstances.
(b) All payments to the commissioner of finance pursuant to subdivi-
sion (a) of this section shall be credited to and deposited in the
general fund of this city.
§ 11-2054 Construction and enforcement. This subchapter shall be
construed and enforced in conformity with articles twenty-eight and
twenty-nine of the tax law of the state of New York pursuant to which it
is enacted.
SUBCHAPTER 5
TAX ON BEER AND LIQUOR
§ 11-2055 Definitions. When used in this subchapter the following
terms shall mean or include:
1. "Person." An individual, partnership, society, association,
corporation, joint-stock company, and any combination of individuals,
and also an executor, administrator, receiver, trustee or other fiduci-
ary.
2. "Alcohol." Ethyl alcohol, hydrated oxide of ethyl or spirit of
wine, from whatever source or by whatever process produced.
3. "Beers." All alcoholic beer, lager beer, ale, porter, and stout,
and all other fermented beverages of any name or description manufac-
tured from malt, wholly or in part, or from any substitute therefor
containing one-half of one per centum, or more, of alcohol by volume.
4. "Liquors." Any and all distilled or rectified spirits, alcohol,
brandy, cordial, whether the base therefor be wine or liquor, whiskey,
rum, gin and all other distilled beverages containing alcohol, including
all dilutions and mixtures of one or more of such liquids, including any
A. 10030 1037
alcoholic liquids which would be wines if the alcoholic content thereof
were not more than twenty-four per centum by volume. Such term shall not
include liquors containing not more than twenty-four per centum of alco-
hol by volume.
5. "Alcoholic beverages." Beer or liquors.
6. "Distributor." Any person who imports or causes to be imported into
this city any alcoholic beverages which are or will be offered for sale
or used for any commercial purpose; any purchaser of warehouse receipts
for alcoholic beverages stored in a warehouse in this city who causes
such beverages to be removed from such warehouse; and also any person
who produces, distills, manufactures, brews, compounds, mixes or
ferments any alcoholic beverages within this city for sale, except: (a)
a person who manufactures, mixes or compounds alcoholic beverages the
ingredients of which consist only of alcoholic beverages on which the
taxes imposed by this subchapter have been paid, and (b) a person who
mixes or compounds alcoholic beverages with non-alcoholic ingredients
for sale and immediate consumption on the premises, who shall be a
distributor only with respect to the ingredients which consist of alco-
holic beverages upon which the taxes imposed by this subchapter have not
been paid.
7. "Noncommercial importer." A person other than a distributor who
imports or causes to be imported into this city alcoholic beverages,
except that such person shall not be a noncommercial importer where he
or she imports or causes to be imported into this city alcoholic bever-
ages in the quantities and under the conditions provided by subdivision
(e) of section 11-2056 of this subchapter.
8. "Sale." Any transfer, exchange or barter in any manner or by any
means whatsoever. The sale of warehouse receipts given upon the storage
of alcoholic beverages shall not be construed as a sale of the beverages
represented by such receipts.
9. "Use." Any compounding or mixing of alcoholic beverages with other
ingredients or other treatment of the same in such manner as to render
them unfit or unsuitable for consumption as a beverage and also the
actual consumption or possession for consumption of alcoholic beverages
as a beverage or otherwise.
10. "Gallon." One hundred twenty-eight fluid ounces; "quart" means
thirty-two fluid ounces.
11. "Liter." A metric unit of capacity equal to one thousand cubic
centimeters of alcoholic beverages and equivalent to thirty-three and
eight hundred fourteen thousandths fluid ounces.
12. "City." The city of Staten Island.
13. "Commissioner of finance." Commissioner of finance of the city.
14. "Tax commission." The tax commission of the state of New York.
15. Unless a different meaning is clearly required, any term used in
this subchapter shall have the same meaning as when used in a comparable
context in the laws of the state of New York relating to taxes on alco-
holic beverages.
§ 11-2056 Imposition of tax. (a) There are hereby imposed on a
distributor and a noncommercial importer excise taxes at the following
rates:
(1) twelve cents per gallon upon beers; and
(2) twenty-six and four-tenths cents per liter upon liquors, when sold
or used within this city, except when sold or used under such circum-
stances that this city is without power to impose such tax or when sold
to the United States, and except beers when sold to or by a voluntary
unincorporated organization of the armed forces of the United States
A. 10030 1038
operating a place for the sale of goods pursuant to regulations promul-
gated by the appropriate executive agency of the United States, and
except when sold to professional foreign consuls-general, consuls and
vice-consuls who are nationals of the state appointing them and who are
assigned to foreign consulates in this city provided that American
consular officers of equal rank who are citizens of the United States
and who exercise their official functions at American consulates in such
foreign country are granted reciprocal exemptions; provided, however,
that the tax commission may permit the sale of alcohol without tax to a
holder of any industrial alcohol permit, alcohol permit or alcohol
distributor's permit, issued by the state liquor authority, and by the
holder of an alcohol distributor's permit, class A, issued by such
authority to a holder of a distiller's license, class B, or a winery
license, issued by such authority and may also permit the use of alcohol
for any purpose other than the production of alcoholic beverages by such
holders without tax.
Notwithstanding any other provision of this subchapter, the tax
commission may permit the purchase of liquors without tax by a holder of
a distiller's license issued by the state liquor authority from another
holder of a distiller's license by such authority, in which event the
liquors so purchased shall be subject to the tax imposed by this
subchapter in the hands of the purchaser in the same manner and to the
same extent as if such purchaser had imported or caused the same to be
imported into this city or had produced, distilled, manufactured,
brewed, compounded, mixed or fermented the same within this city.
(b) There is also imposed on each person, other than a distributor
within the meaning of this subchapter, who, on August first, nineteen
hundred eighty, owns and possesses for the purposes of sale beers or
liquors, a floor tax at the rates applicable under subdivision (a) upon
such beer in excess of one hundred gallons and upon such liquor in
excess of four hundred liters. Such floor tax shall be due and payable
on the twentieth day of the month succeeding the month of August, nine-
teen hundred eighty.
(c) If, prior to August first, nineteen hundred eighty, a contract of
sale of alcoholic beverages was made, and delivery thereof pursuant to
such contract is made within this city on or after August first, nine-
teen hundred eighty, the vendor shall be deemed a distributor for the
purposes of this subchapter, and such alcoholic beverages shall be
deemed to be sold, and shall be subject to such taxes, at the time of
such delivery.
(d) In any case where the quantity of alcoholic beverages taxable
pursuant to this subchapter is a fractional part of one liter, or one
gallon in the case of beers, or an amount greater than a whole multiple
of liters, or gallons in the case of beers, the amount of tax levied and
imposed on such fractional part of one liter, or one gallon in the case
of beers, or fractional part of a liter, or gallon, in excess of a whole
multiple of liters or gallons shall be such fractional part of the rate
imposed by subdivisions (a) and (b) of this section.
(e) Notwithstanding any other provisions of this subchapter, there
shall be exempt from the taxes imposed under this subchapter, per month,
one quart of alcoholic beverages, or one gallon of such beverages in the
case of a person arriving directly from American Samoa, Guam or the
Virgin Islands of the United States not more than one quart of which
shall have been acquired elsewhere than in such insular possessions:
(1) purchased outside this city as an incident to a journey from which
the purchaser is returning and
A. 10030 1039
(2) not to be offered for sale or used for any commercial purpose,
provided such alcoholic beverages accompany such person on his or her
return to this city and provided, further, that in the case of a person
arriving in this city from other than a state of the United States,
including the District of Columbia, the Virgin Islands of the United
States or a contiguous country maintaining a free zone or free port,
such person shall have remained beyond the territorial limits of the
United States for a period of not less than forty-eight hours.
Provided, however, where the amounts purchased outside the city or
brought in exceed the amounts specified in this subdivision but are not
in excess of one liter in the case of the references to one quart or
four liters in the case of the reference to one gallon, and where no
duty is required by the laws of the United States to be paid on such
amounts, such metric standards of fill shall be substituted for one
quart and one gallon, respectively, and such amounts shall be exempt
from tax under the conditions provided for in this subdivision.
§ 11-2057 Manner of administration and collection. All the provisions
of article eighteen of the tax law shall apply to the taxes imposed by
subdivision (a) of section 11-2056 of this subchapter, and the
provisions of sections four hundred twenty, four hundred twenty-six,
four hundred twenty-nine through four hundred thirty-four, four hundred
thirty-six and four hundred thirty-seven of the tax law shall apply to
the tax imposed by subdivision (b) of section 11-2056 of this subchap-
ter, so far as such sections can be made applicable to the taxes imposed
by this subchapter with such limitations as set forth in section four
hundred forty-five of the tax law and such modifications as may be
necessary in order to adapt such language to the taxes imposed by this
subchapter.
§ 11-2058 State tax commission; administration. The taxes imposed by
this subchapter shall be administered and collected by the tax commis-
sion in the same manner as the taxes imposed under sections four hundred
twenty-four and four hundred twenty-five of the tax law subject to all
provisions of that article as may be applicable. The tax commission may
make such provisions as it deems necessary for the joint administration
and collection of the state and local taxes imposed and authorized by
article eighteen of the tax law and this subchapter. Nothing in such
article eighteen or this subchapter which requires payment of both state
and local taxes to the tax commission shall be construed as the payment
of either tax more than once.
§ 11-2059 Disposition of revenues. All taxes, penalties and interest
imposed by this subchapter, which are collected by the tax commission,
shall be deposited daily with such responsible banks, banking houses or
trust companies, as may be designated by the state comptroller, to the
credit of the comptroller, in trust for this city. Such deposits shall
be kept in trust and separate and apart from all other monies in the
possession of the comptroller. The comptroller shall require adequate
security from all such depositories of such revenues collected by the
tax commission. The comptroller shall retain in his or her hands such
amount as the commissioner of taxation and finance may determine to be
necessary for refunds in respect of the taxes imposed by this subchap-
ter, and for reasonable costs of the state tax commission in administer-
ing, collecting and distributing such taxes, out of which the comp-
troller shall pay any refunds of such taxes to which taxpayers shall be
entitled under the provisions of this subchapter. The comptroller, after
reserving such refund and such costs shall, on or before the twelfth day
of each month, pay to the commissioner of finance the taxes, penalties
A. 10030 1040
and interest imposed by this subchapter, collected by the state tax
commission pursuant to this subchapter during the next preceding calen-
dar month. The amount so payable shall be certified to the comptroller
by the president of the state tax commission or his or her delegate, who
shall not be held liable for any inaccuracy in such certificate. Where
the amount so paid over to the city in any such distribution is more or
less than the amount then due to the city, the amount of the overpayment
or underpayment shall be certified to the comptroller by the president
of the state tax commission or his or her delegate, who shall not be
held liable for any inaccuracy in such certificate. The amount of the
overpayment or underpayment shall be so certified to the comptroller as
soon after the discovery of the overpayment or underpayment as reason-
ably possible and subsequent payments and distributions by the comp-
troller to the city shall be adjusted by subtracting the amount of any
such overpayment from or by adding the amount of any such underpayment
to such number of subsequent payments and distributions as the comp-
troller and the president of the state tax commission shall consider
reasonable in view of the amount of the overpayment or underpayment and
all other facts or circumstances.
§ 11-2060 Construction. This subchapter shall be construed and
enforced in conformity with section four hundred forty-five of the tax
law, pursuant to which it is enacted.
CHAPTER 21
REAL PROPERTY TAX
§ 11-2101 Definitions. When used in this chapter the following terms
shall mean or include:
1. "Person." An individual, partnership, society, association, joint
stock company, corporation, estate, receiver, trustee, assignee, referee
or any other person acting in a fiduciary or representative capacity,
whether appointed by a court or otherwise, any combination of individ-
uals, and any other form of unincorporated enterprise owned or conducted
by two or more persons.
2. "Deed." Any document or writing, other than a will, regardless of
where made, executed or delivered, whereby any real property or interest
therein is created, vested, granted, bargained, sold, transferred,
assigned or otherwise conveyed, including any such document or writing
whereby any leasehold interest in real property is granted, assigned or
surrendered.
3. "Instrument." Any document or writing, other than a deed or a will,
regardless of where made, executed or delivered, whereby any economic
interest in real property is transferred.
4. "Transaction." Any act or acts, regardless of where performed, and
whether or not reduced to writing, unless evidenced by a deed or instru-
ment, whereby any economic interest in real property is transferred,
other than a transfer pursuant to the laws of intestate succession.
5. "Real property." Every estate or right, legal or equitable, present
or future, vested or contingent, in lands, tenements or hereditaments,
which are located in whole or in part within the city of Staten Island.
It shall not include a mortgage, a release of mortgage or, for purposes
of paragraph three and subparagraphs (ii) and (iii) of paragraph seven
of subdivision a of section 11-2102 of this chapter, a leasehold inter-
est in a one, two or three-family house or an individual dwelling unit
in a dwelling which is to be occupied or is occupied as the residence or
A. 10030 1041
home of four or more families living independently of each other. It
shall not include rights to sepulture.
6. "Economic interest in real property." The ownership of shares of
stock in a corporation which owns real property; the ownership of an
interest or interests in a partnership, association or other unincorpo-
rated entity which owns real property; and the ownership of a beneficial
interest or interests in a trust which owns real property.
7. "Transfer" or "transferred." When used in relation to an economic
interest in real property, the terms "transfer" or "transferred" shall
include the transfer or transfers or issuance of shares of stock in a
corporation, interest or interests in a partnership, association or
other unincorporated entity, or beneficial interest in a trust, whether
made by one or several persons, or in one or several related trans-
actions, which shares of stock or interest or interests constitute a
controlling interest in such corporation, partnership, association,
trust or other entity.
8. "Controlling interest." In the case of a corporation, fifty percent
or more of the total combined voting power of all classes of stock of
such corporation, or fifty percent or more of the total fair market
value of all classes of stock of such corporation; and, in the case of a
partnership, association, trust or other entity, fifty percent or more
of the capital, profits or beneficial interest in such partnership,
association, trust or other entity.
9. "Consideration." The price actually paid or required to be paid for
the real property or economic interest therein, without deduction for
mortgages, liens or encumbrances, whether or not expressed in the deed
or instrument and whether paid or required to be paid by money, proper-
ty, or any other thing of value. It shall include the cancellation or
discharge of an indebtedness or obligation. It shall also include the
amount of any mortgage, lien or other encumbrance, whether or not the
underlying indebtedness is assumed.
10. "Net consideration." Any consideration, exclusive of any mortgage
or other lien or encumbrance on the real property or interest therein
which existed before the delivery of the deed and remains thereon after
the delivery of the deed.
11. "Comptroller." The comptroller of the city of Staten Island.
12. "Commissioner of finance." The commissioner of finance of the city
of Staten Island.
13. "City." The city of Staten Island.
14. "Grantor." The person or persons making, executing or delivering
the deed. The term "grantor" also includes the entity with an interest
in real property or the person or persons who transfer an economic
interest in real property.
15. "Grantee." The person or persons accepting the deed or who obtain
any of the real property which is the subject of the deed or any inter-
est therein. The term "grantee" also includes the person or persons to
whom an economic interest in real property is transferred.
16. "Affixed." Includes attached or annexed by adhesion, stapling or
otherwise, or a notation by stamp, imprint or writing.
17. "Register." Includes the city register and the county clerk of the
county of Richmond.
18. "Tax appeals tribunal." The tax appeals tribunal established by
section one hundred sixty-eight of the charter of the preceding munici-
pality as it existed January first, nineteen hundred ninety-four.
§ 11-2102 Imposition of tax. a. A tax is hereby imposed on each deed
at the time of delivery by a grantor to a grantee when the consideration
A. 10030 1042
for the real property and any improvement thereon, whether or not
included in the same deed, exceeds twenty-five thousand dollars. The tax
shall be:
(1) at the rate of one-half of one per centum of the net consideration
with respect to conveyances made before July first, nineteen hundred
seventy-one, or made in performance of a contract therefor executed
before such date;
(2) at the rate of one percent of such net consideration with respect
to
(i) all conveyance made on or after July first, nineteen hundred
seventy-one and before February first, nineteen hundred eighty-two, or
made in performance of a contract therefor executed during such period;
(ii) conveyances made on or after February first, nineteen hundred
eighty-two and before July first, nineteen hundred eighty-two of one,
two or three-family houses and individual residential condominium units,
and
(iii) conveyances made on or after February first, nineteen hundred
eighty-two and before July first, nineteen hundred eighty-two where the
consideration is less than five hundred thousand dollars, other than
grants, assignments or surrenders of leasehold interests in real proper-
ty taxable under paragraph three of this subdivision;
(3) at the rate of one percent of the consideration with respect to
grants, assignments or surrenders of leasehold interests in real proper-
ty made on or after February first, nineteen hundred eighty-two and
before July first, nineteen hundred eighty-two where the consideration
if five hundred thousand dollars or more, provided however, that for
purposes of this paragraph the amount subject to tax in the case of a
grant of a leasehold interest in real property shall be only such amount
as is not considered rent for purposes of the tax imposed by chapter
seven of this title;
(4) at the rate of two percent of the consideration with respect to
all other conveyances made on or after February first, nineteen hundred
eighty-two and before July first, nineteen hundred eighty-two, except
that, for purposes of this paragraph, where the consideration includes
the amount of any mortgage or other lien or encumbrance on the real
property or interest therein which existed before the delivery of the
deed and remains thereon after the delivery of the deed, the portion of
the consideration ascribable to such mortgage, lien or encumbrance shall
be taxed at the rate of one percent, and only the balance of such
consideration shall be taxed at the rate of two percent;
(5) at the rate of one percent of the consideration with respect to
conveyances made on or after July first, nineteen hundred eighty-two and
before August first, nineteen hundred eighty-nine of one, two or three-
family houses and individual residential condominium units;
(6) at the rate of one percent of the consideration with respect to
conveyances made on or after July first, nineteen hundred eighty-two and
before August first, nineteen hundred eighty-nine where the consider-
ation is less than five hundred thousand dollars, other than grants,
assignments or surrenders of leasehold interests in real property taxa-
ble as hereafter provided;
(7) (i) at the rate of one percent of the consideration with respect
to a grant, assignment or surrender, made on or after July first, nine-
teen hundred eighty-two and before August first, nineteen hundred eight-
y-nine, of a leasehold interest in a one, two or three-family house or
an individual dwelling unit in a dwelling which is to be occupied or is
A. 10030 1043
occupied as the residence or home of four or more families living inde-
pendently of each other,
(ii) at the rate of one percent of the consideration with respect to
grants, assignments or surrenders of leasehold interests in real proper-
ty made on or after July first, nineteen hundred eighty-two and before
August first, nineteen hundred eighty-nine where the consideration is
less than five hundred thousand dollars, or
(iii) at the rate of two percent of the consideration with respect to
grants, assignments or surrenders of leasehold interests in real proper-
ty made on or after July first, nineteen hundred eighty-two and before
August first, nineteen hundred eighty-nine where the consideration is
five hundred thousand dollars or more;
(iv) provided, however, that for purposes of subparagraphs (i), (ii)
and (iii) of this paragraph, the amount subject to tax in the case of a
grant of a leasehold interest shall be only such amount as is not
considered rent for purposes of the tax imposed by chapter seven of this
title; and
(8) at the rate of two percent of the consideration with respect to
all other conveyances made on or after July first, nineteen hundred
eighty-two and before August first, nineteen hundred eighty-nine;
(9) with respect to conveyances made on or after August first, nine-
teen hundred eighty-nine, other than grants, assignments or surrenders
of leasehold interests in real property taxable as provided in paragraph
ten of this subdivision, the tax shall be at the following rates:
(i) at the rate of one percent of the consideration for conveyances of
one, two or three-family houses and individual residential condominium
units where the consideration is five hundred thousand dollars or less,
and at the rate of one and four hundred twenty-five thousandths of one
percent of the consideration for such conveyances where the consider-
ation is more than five hundred thousand dollars, and
(ii) at the rate of one and four hundred twenty-five thousandths of
one percent of the consideration with respect to all other conveyances
where the consideration is five hundred thousand dollars or less, and at
the rate of two and six hundred twenty-five thousandths of one percent
where the consideration for such conveyances is more than five hundred
thousand dollars;
(10) With respect to a grant, assignment or surrender of a leasehold
interest in real property made on or after August first, nineteen
hundred eighty-nine, the tax shall be at the following rates:
(i) at the rate of one percent of the consideration for the granting,
assignment or surrender of a leasehold interest in a one, two or three-
family house or an individual dwelling unit in a dwelling which is to be
occupied or is occupied as the residence or home of four or more fami-
lies living independently of each other where the consideration is five
hundred thousand dollars or less, and at the rate of one and four
hundred twenty-five thousandths of one percent of the consideration
where the consideration for granting, assignment or surrender or such
leasehold interest is more than five hundred thousand dollars; and
(ii) at the rate of one and four hundred twenty-five thousandths of
one percent of the consideration for the granting, assignment or surren-
der of a leasehold interest in all other real property where the consid-
eration is five hundred thousand dollars or less, and at the rate of two
and six hundred twenty-five thousandths of one percent of the consider-
ation where the consideration for the granting, assignment or surrender
of such a leasehold interest is more than five hundred thousand dollars;
and
A. 10030 1044
(iii) provided, however, that for purposes of subparagraphs (i) and
(ii) of this paragraph, the amount subject to tax in the case of a grant
of a leasehold interest shall be only such amount as is not considered
rent for purposes of the tax imposed by chapter seven of this title.
Where any real property is situated partly within and partly without
the boundaries of the city of Staten Island the consideration and net
consideration subject to tax shall be such part of the total consider-
ation and total net consideration attributable to that portion of such
real property situated within the city of Staten Island or to the inter-
est in such portion.
b. (1) In addition to the taxes imposed by subdivision a of this
section, there is hereby imposed a tax on each instrument or trans-
action, unless evidenced by a deed subject to tax under subdivision a of
this section, at the time of the transfer, whereby any economic interest
in real property is transferred by a grantor to a grantee, where the
consideration exceeds twenty-five thousand dollars.
(A) With respect to such transfers made on or after July thirteenth,
nineteen hundred eighty-six and before August first, nineteen hundred
eighty-nine, the tax shall be (i) at the rate of one percent of the
consideration where the real property the economic interest in which is
transferred is a one, two or three-family house, an individual cooper-
ative apartment, an individual residential condominium unit or an indi-
vidual dwelling unit in a dwelling which is to be occupied or is occu-
pied as the residence or home of four or more families living
independently of each other, or where the consideration for the transfer
is less than five hundred thousand dollars, and (ii) at the rate of two
percent of the consideration with respect to all other transfers.
(B) With respect to such transfers made on or after August first,
nineteen hundred eighty-nine, the tax shall be at the following rates:
(i) at the rate of one percent of the consideration where the real
property, the economic interest in which is transferred, is a one, two
or three-family house, an individual cooperative apartment, an individ-
ual residential condominium unit or an individual dwelling unit in a
dwelling which is to be occupied or is occupied as the residence or home
of four or more families living independently of each other and where
the consideration for such transfer of an economic interest in such real
property is five hundred thousand dollars or less, and at the rate of
one and four hundred twenty-five thousandths of one percent of the
consideration where the consideration for such transfer of an economic
interest in such property is more than five hundred thousand dollars,
and
(ii) at the rate of one and four hundred twenty-five thousandths of
one percent of the consideration with respect to all other transfers of
an economic interest in real property where the consideration is five
hundred thousand dollars or less, and at the rate of two and six hundred
twenty-five thousandths of one percent of the consideration where the
consideration for such transfers is more than five hundred thousand
dollars.
(C) Where any real property, the economic interest in which is trans-
ferred, is situated partly within and partly without the boundaries of
the city of Staten Island, the consideration subject to tax shall be
such part of the consideration as is attributable to that portion of
such real property which is situated within the city of Staten Island.
(2) Notwithstanding the definition of "controlling interest" contained
in subdivision eight of section 11-2101 of this chapter or anything to
the contrary contained in subdivision seven of such section, in the case
A. 10030 1045
of any transfer of shares of stock in a cooperative housing corporation
in connection with the grant or transfer of a proprietary leasehold, the
tax imposed by this subdivision shall apply to (i) the original transfer
of such shares of stock by the cooperative corporation or cooperative
plan sponsor, and (ii) any subsequent transfer of such shares of stock
by the owner thereof. Notwithstanding any provision of this chapter to
the contrary, in the case of a transfer described in clause (ii) of this
subparagraph which relates to an individual residential unit, the
consideration for such transfer shall not include any portion of the
unpaid principal of any mortgage on the real property of the cooperative
housing corporation. In determining the tax on a transfer described in
clause (i) of this subparagraph, a credit shall be allowed for a propor-
tionate part of the amount of any tax paid upon the conveyance to the
cooperative housing corporation of the land and building or buildings
comprising the cooperative dwelling or dwellings. Such proportionate
part shall be the amount determined by multiplying the amount of tax
paid upon the conveyance to the cooperative housing corporation by a
fraction, the numerator of which shall be the number of shares of stock
transferred in a transaction described in clause (i) of this subpara-
graph and the denominator of which shall be the total number of
outstanding shares of stock of the cooperative housing corporation,
including any stock held by the corporation. In no event, however, shall
such credit reduce the tax on a transfer described in clause (i) of this
subparagraph below zero, nor shall any such credit be allowed for any
tax paid more than twenty-four months prior to the date on which occurs
the first in a series of transfers of shares of stock in an offering of
cooperative housing corporation shares described in clause (i) of this
subparagraph. For purposes of this paragraph, the term "cooperative
housing corporation" shall not include a housing company organized and
operating pursuant to the provisions of article two, four, five or elev-
en of the private housing finance law.
(3) Notwithstanding the definition of "controlling interest" contained
in paragraph eight of section 11-2101 of this chapter or anything to the
contrary contained in paragraph seven of such section, in the case of a
corporation, other than a cooperative housing corporation, partnership,
association, trust or other entity formed for the purpose of cooperative
ownership of real property, the tax imposed by this subdivision shall
apply to each transfer of shares of stock in such corporation, interest
in such partnership, association or other entity or beneficial interest
in such trust, in connection with the grant or transfer of a proprietary
leasehold. Notwithstanding any provision of this chapter to the contra-
ry, in the case of a transfer described in this paragraph which relates
to an individual residential unit, other than the original transfer of
such a unit by the cooperative entity or cooperative plan sponsor, the
consideration for such transfer shall not include any portion of the
unpaid principal of any mortgage on the real property of such corpo-
ration, partnership, association, trust or other entity. Notwithstanding
any other provision of law to the contrary, all revenues arising from
the tax imposed pursuant to this paragraph shall be credited to and
deposited in the general fund of the city, but no part of such revenues
may be expended unless appropriated in the annual budget of the city.
c. (1) Anything to the contrary notwithstanding, in the case of any
conveyance or transfer of real property or any economic interest therein
in complete or partial liquidation of a corporation, partnership, asso-
ciation, trust or other entity, the taxes imposed by this section shall
be measured by (i) the consideration for such conveyance or transfer, or
A. 10030 1046
(ii) the value of the real property or economic interest therein, which-
ever is greater.
(2) If, within twenty-four months following the transfer of an econom-
ic interest in real property which is subject to the tax imposed by this
chapter, the corporation, partnership, association, trust or other enti-
ty owning the real property the economic interest in which was so trans-
ferred, is liquidated, and such real property is conveyed to the grantee
or grantees of such economic interest, a credit shall be allowed against
the tax imposed by this chapter upon such conveyance in liquidation to
such grantee or grantees. The amount of such credit shall be equal to
the amount of the tax paid upon the prior transfer of the economic
interest in such real property, but shall in no event be greater than
the tax payable upon the conveyance in liquidation.
d. In the case of a transfer of an economic interest in any entity
that owns assets in addition to real property or interest therein, the
consideration subject to tax shall be deemed equal to the fair market
value of the real property or interest therein apportioned based on the
percentage of the ownership interest in the entity transferred.
e. (1) Notwithstanding anything contained in this section, the tax
imposed under subdivisions a and b of this section on any deed or other
instrument or transaction conveying or transferring real property or an
economic interest therein, that qualifies as a real estate investment
trust transfer, as defined below, shall be imposed at a rate equal to
fifty percent of the otherwise applicable rate.
(2) For purposes of this subdivision, a real estate investment trust
transfer shall mean (A) any deed or other instrument or transaction
conveying or transferring real property or an economic interest therein
to a real estate investment trust as defined in section eight hundred
fifty-six of the internal revenue code (a "REIT") or to a partnership or
corporation in which a REIT owns a controlling interest immediately
following the transaction; and (B) any issuance or transfer of an inter-
est in a REIT, or in a partnership or corporation in which a REIT owns a
controlling interest immediately following the issuance or transfer in
connection with a transaction described in subparagraph (A) of this
paragraph.
Provided, however, a transaction described in the opening paragraph
of this paragraph shall not constitute a real estate investment trust
transfer unless (i) it occurs in connection with the initial formation
of the REIT and the conditions described in subparagraphs (C) and (D) of
this paragraph are satisfied, or (ii) in the case of any real estate
investment trust transfer occurring on or after July thirteenth, nine-
teen hundred ninety-six and before September first, two thousand twen-
ty-six, the transaction is described in subparagraph (E) of this para-
graph in which case the provision of such subparagraph shall apply.
(C) The value of the ownership interests in the REIT, or in a partner-
ship or corporation in which the REIT owns a controlling interest,
received by the grantor as consideration for such conveyance or transfer
must be equal to an amount not less than forty percent of the value of
the equity interest in the real property or economic interest therein
conveyed or transferred by the grantor to the grantee and such ownership
interests must be retained by the grantor or owners of the grantor for a
period of not less than two years following the date of such conveyance
or transfer; provided, however, that in the case of the death of the
grantor or an owner of the grantor within such two year period, this two
year retention requirement shall be deemed to be satisfied notwithstand-
ing any conveyance or transfer of such ownership interests held by such
A. 10030 1047
individual as a result of such death. The value of the equity interest
in such real property or economic interest therein shall be computed by
subtracting from the consideration for the conveyance or transfer of the
real property or economic interest therein the unpaid balance of any
loans secured by mortgages or other encumbrances which are liens on the
real property or economic interest therein immediately before the
conveyance or transfer. For purposes of this computation, in the case of
a conveyance or transfer of real property other than a conveyance or
transfer of an economic interest in real property, the amount of the
unpaid balance of any loans secured by mortgages or other encumbrances
to be subtracted from consideration is determined by multiplying the
total unpaid balance of any loans secured by mortgages or other encum-
brances on the real property by the percentage of the ownership interest
in the real property being conveyed or transferred to the grantee. In
the case of a transfer of an economic interest in real property, such
amount to be subtracted is equal to the sum of the following amounts:
(i) a reasonable apportionment to the interests in real property owned
by the entity of the amount of any loans secured by encumbrances on the
ownership interests in the entity which are being conveyed or trans-
ferred and (ii) the amount of any loans secured by mortgages or other
encumbrances on the real property of the entity multiplied by the
percentage interest in the entity which is being conveyed or trans-
ferred.
Provided, however, that for purposes of the computation made pursuant
to this subparagraph, any mortgages or other encumbrances on the real
property or economic interest therein which are created in contemplation
of the initial formation of the REIT or in contemplation of the convey-
ance or transfer of such real property or economic interest therein to
the REIT or to a partnership or corporation in which the REIT owns a
controlling interest immediately following the conveyance or transfer
shall not be considered.
(D) Seventy-five percent or more of the cash proceeds received by such
REIT from the sale of ownership interests in such REIT upon its initial
formation must be used: (i) to make payments on loans secured by any
interest in real property, including an ownership interest in an entity
owning real property, which is owned directly or indirectly by such
REIT; (ii) to pay for capital improvements to real property or any
interest therein owned directly or indirectly by such REIT; (iii) to pay
brokerage fees and commissions, professional fees and payments to or on
behalf of a tenant as an inducement to enter into a lease or sublease
incurred in connection with the creation of a leasehold or sublease
pertaining to real property or any interest therein owned directly or
indirectly by such REIT; (iv) to acquire any interest in real property,
including an ownership interest in any entity owning real property,
apart from any acquisition to which a reduced rate of tax is applicable
pursuant to this subdivision, without regard to this subparagraph; or
(v) for reserves established for any of the purposes described in clause
(i), (ii) or (iii) of this subparagraph. For purposes of this subpara-
graph, the term real property shall include real property wherever
located.
(E) If a transaction otherwise described in subparagraph (A) or (B) of
this paragraph occurs other than in connection with the initial forma-
tion of a REIT, the condition set forth in subparagraph (D) shall be
disregarded and such transaction shall constitute a "real estate invest-
ment trust transfer" if the condition set forth in subparagraph (C)
A. 10030 1048
would be satisfied if "fifty percent" is substituted for "forty percent"
therein.
(3) For purposes of determining the consideration for a real estate
investment trust transfer taxable under this subdivision the value of
the real property or interest therein shall be equal to the estimated
market value as determined by the commissioner of finance for real prop-
erty tax purposes as reflected on the most recent notice of assessment
issued by such commissioner, or such other value as the taxpayer may
establish to the satisfaction of such commissioner.
(4) This subdivision shall only apply to real estate investment trust
transfers occurring on or after the effective date of this subdivision.
f. Notwithstanding any other provision of this chapter, in determining
the tax imposed by this chapter with respect to a deed, instrument or
transaction conveying or transferring a one, two or three-family house,
an individual residential condominium unit, an individual residential
cooperative apartment, or an interest therein, the consideration for
such conveyance or transfer shall exclude, to the extent otherwise
included therein, the amount of any mortgage or other lien or encum-
brance on the real property or interest therein that existed before the
delivery of the deed or the transfer and remains thereon after the date
of delivery of the deed or the transfer, other than any mortgage, lien
or encumbrance placed on the property or interest in connection with, or
in anticipation of, the conveyance or transfer, or by reason of deferred
payments of the purchase price whether represented by notes or other-
wise. Provided, however, that this subdivision shall not apply to a
conveyance or transfer (1) to a mortgagee, lienor or encumbrancer,
regardless of whether the grantor or transferor is or was personally
liable for the indebtedness secured by the mortgage, lien or encumbrance
or whether the mortgage, lien or encumbrance is canceled of record, or
(2) which qualifies as a "real estate investment trust transfer" as
defined in subdivision e of this section.
§ 11-2103 Presumptions and burden of proof. For the purpose of the
proper administration of this chapter and to prevent evasion of the tax
hereby imposed, it shall be presumed that all deeds and transfers of
economic interests in real property are taxable. Where the consider-
ation includes property other than money, it shall be presumed that the
consideration is the value of the real property or interest therein.
Such presumptions shall prevail until the contrary is established and
the burden of proving the contrary shall be on the taxpayer. The burden
of proving that a lien or encumbrance existed on the real property or
interest therein before the delivery of the deed and remained thereon
thereafter and the burden of proving the amount of such lien or encum-
brance at the time of the delivery of the deed shall be on the taxpayer.
§ 11-2104 Payment. The tax imposed hereunder shall be paid by the
grantor to the commissioner of finance at the office of the register in
the county where the deed is or would be recorded within thirty days
after the delivery of the deed by the grantor to the grantee but before
the recording of such deed, or, in the case of a tax on the transfer of
an economic interest in real property, at such place as the commissioner
of finance shall designate, within thirty days after the transfer. The
grantee shall also be liable for the payment of such tax in the event
that the amount of tax due is not paid by the grantor or the grantor is
exempt from tax. All moneys received as such payments by the register
during the preceding month shall be transmitted to the commissioner of
finance on the first day of each month or on such other day as is mutu-
ally agreeable to the commissioner of finance and the register. From the
A. 10030 1049
moneys so received by him or her, the commissioner of finance shall set
said in a special account:
(1) the total amount of taxes imposed pursuant to the provisions of
paragraph three of subdivision a of section 11-2102 of this chapter
including any interest or penalties thereon;
(2) fifty percent of the total amount of taxes imposed pursuant to the
provisions of paragraph four of subdivision a of section 11-2102 of this
chapter, including fifty percent of any interest or penalties thereon,
provided, however, that where such tax is measured by the consideration
for a conveyance without deduction for the amount of any mortgage or
other lien or encumbrance on the real property or interest therein which
existed before the delivery of the deed and remains thereon after the
delivery of the deed, the entire amount of tax imposed at the rate of
one percent on the portion of the consideration ascribable to such
nondeductible mortgage, lien or other encumbrance, including any inter-
est or penalties thereon, and fifty percent of the tax on the balance of
the consideration, including fifty percent of any interest or penalties
thereon, shall be set aside in such special account;
(3) fifty percent of the total amount of taxes imposed pursuant to the
provisions of subparagraph (iii) of paragraph seven of subdivision a of
section 11-2102 of this chapter, including fifty percent of any interest
or penalties thereon;
(4) fifty percent of the total amount of taxes imposed pursuant to the
provisions of paragraph eight of subdivision a of section 11-2102 of
this chapter, including fifty percent of any interest or penalties ther-
eon;
(5) fifty percent of the total amount of taxes imposed at the rate of
two percent pursuant to the provisions of clause (ii) of subparagraph A
of paragraph one of subdivision b of section 11-2102 of this chapter
including fifty percent of any interest or penalties thereon;
(6) with respect to any conveyance of real property, transfer of an
economic interest therein, or any grant, assignment or surrender of a
leasehold interest in real property, made on or after August first,
nineteen hundred eighty-nine and taxable under this chapter, in each
instance where the tax rate is in excess of two percent, a portion of
the tax received equal to one percent of the consideration subject to
the tax plus any interest or penalty attributable to such portion of the
tax; and
(7) notwithstanding anything in subdivision six of this section to the
contrary, in each instance where the tax rate imposed pursuant to subdi-
vision e of section 11-2102 of this chapter is in excess of one percent,
a portion of the tax received equal to one-half of one percent of the
total consideration for the real property or economic interest therein
conveyed or transferred, plus any interest or penalty attributable to
such portion of the tax.
Moneys in such account shall be used for payment by such commissioner
to the state comptroller for deposit in the urban mass transit operating
assistance account of the mass transportation operating assistance fund
of any amount of insufficiency certified by the state comptroller pursu-
ant to the provisions of subdivision six of section eighty-eight-a of
the state finance law, and, on the fifteenth day of each month, the
commissioner of finance shall transmit all funds in such account on the
last day of the preceding month, except the amount required for the
payment of any amount of insufficiency certified by the state comp-
troller and such amount as he or she deems necessary for refunds and
such other amounts necessary to finance the New York City transportation
A. 10030 1050
disabled committee and the New York City paratransit system as estab-
lished by section fifteen-b of the transportation law, provided, howev-
er, that such amounts shall not exceed six percent of the total funds in
the account but in no event be less than one hundred seventy-five thou-
sand dollars beginning April first, nineteen hundred eighty-six, and
further that beginning November fifteenth, nineteen hundred eighty-four
and during the entire period prior to operation of such system, the
total of such amounts shall not exceed three hundred seventy-five thou-
sand dollars for the administrative expenses of such committee and fifty
thousand dollars for the expenses of the agency designated pursuant to
paragraph b of subdivision five of such section, and other amounts
necessary to finance the operating needs of the private bus companies
franchised by the city of New York and eligible to receive state operat-
ing assistance under section eighteen-b of the transportation law,
provided, however, that such amounts shall not exceed four percent of
the total funds in the account, to the New York city transit authority
for mass transit within the city.
§ 11-2105 Returns. a. A joint return shall be filed by both the
grantor and the grantee for each deed whether or not a tax is due there-
on. Such return shall be filed with the commissioner of finance within
thirty days after the delivery of the deed by the grantor to the grantee
but before the recording of such deed. The commissioner of finance may,
by rule, require that such returns be filed electronically.
Filing shall be accomplished by delivering the return to the register
for transmittal to the commissioner of finance or, where required by the
commissioner of finance, by electronic filing of the return in a manner
designated by the commissioner of finance. In the case of a transfer of
an economic interest in real property, a joint return shall be filed in
the above manner by both the grantor and the grantee for each instrument
or transaction by which such transfer is effected, whether or not a tax
is due thereon. Such return shall be filed with the commissioner of
finance, at such place and in such manner as he or she may designate
within thirty days after the transfer. The commissioner of finance shall
prescribe the form of the return and the information which it shall
contain. The return shall be signed by both the grantor or the grantor's
agent and the grantee or the grantee's agent. Where the commissioner of
finance requires electronic filing, the return shall be signed electron-
ically. Upon the filing of such return for a deed, evidence of the
filing shall be affixed to the deed by the register. The commissioner of
finance may provide for the use of stamps as evidence of payment and
that they shall be affixed to the deed before it is recorded. Where
either the grantor or grantee has failed to sign the return, it shall be
accepted as a return, but the party who has failed to sign the return or
file a separate return shall be subject to the penalties applicable to a
person who has failed to file a return and the period of limitations for
assessment of tax or of additional tax shall not apply to such party.
For good cause, the commissioner of finance may waive any rule requiring
electronic filing and may permit a return to be filed in such other
manner as the commissioner of finance may designate.
b. Returns shall be preserved for three years and thereafter until
the commissioner of finance permits them to be destroyed.
c. The commissioner of finance may require amended returns to be filed
within twenty days after notice and to contain the information specified
in the notice.
d. If a return required by this chapter is not filed or if a return
when filed is incorrect or insufficient on its face the commissioner of
A. 10030 1051
finance shall take the necessary steps to enforce the filing of such a
return or of a corrected return.
e. Where a deed, or instrument or transaction has more than one gran-
tor or more than one grantee, the return may be signed by any one of the
grantors and by any one of the grantees, provided, however, that those
not signing shall not be relieved of any liability for the tax imposed
by this chapter.
f. The payment of, and the filing of returns relating to, the taxes
imposed hereunder, shall be required as a condition precedent to the
recording or filing of a deed, lease, assignment or surrender of lease
or other instrument effecting a conveyance or transfer subject to such
taxes.
g. Every cooperative housing corporation shall be required to file an
information return with the commissioner of finance as follows: such
information return shall be filed by February fifteenth of the year two
thousand and of each year thereafter, covering the reporting period
beginning on January sixth of the year preceding the filing and ending
on January fifth of the year of the filing. For reporting periods begin-
ning before January sixth, nineteen hundred ninety-nine, such informa-
tion return shall be filed by July fifteenth of each year covering the
preceding period of January first through June thirtieth and by January
fifteenth of each year covering the preceding period of July first
through December thirty-first provided, however, that for the reporting
period from January first through June thirtieth, nineteen hundred
eighty-nine, such information return shall be filed by July thirty-
first, nineteen hundred eighty-nine. The return shall contain such
information regarding the transfer of shares of stock in the cooperative
housing corporation as the commissioner may deem necessary, including
but not limited to, the names, addresses and employer identification
numbers or social security numbers of the grantor and the grantee, the
number of shares transferred, the date of the transfer and the consider-
ation paid for such transfer, provided, however, that if such cooper-
ative housing corporation elects that such information return be deemed
an application for an abatement pursuant to paragraph (f) of subdivision
three of section four hundred sixty-seven-a of the real property tax
law, such return shall contain the information required pursuant to
paragraph (d) of subdivision three of such section. The commissioner of
finance may enter into an agreement with the commissioner of taxation
and finance of the state of New York to provide that a single informa-
tion return may be filed for purposes of the tax imposed by this chapter
and the real estate transfer tax imposed by article thirty-one of the
tax law.
h. Returns with respect to the conveyance of a one- or two-family
dwelling will not be accepted for filing unless accompanied by an affi-
davit signed by the grantor and grantee indicating that the premises is
equipped with an approved and operational smoke detecting device as
provided in article six of subchapter seventeen of chapter one of title
twenty-seven of this code.
i. When the grantor or grantee of a deed for a building used as resi-
dential real property containing up to four family dwelling units is a
limited liability company, the joint return shall not be accepted for
filing unless it is accompanied by a document which identifies the names
and business addresses of all members, managers, and any other author-
ized persons, if any, of such limited liability company and the names
and business addresses or, if none, the business addresses of all share-
holders, directors, officers, members, managers and partners of any
A. 10030 1052
limited liability company or other business entity that are to be the
members, managers or authorized persons, if any, of such limited liabil-
ity company. The identification of such names and addresses shall not be
deemed an unwarranted invasion of personal privacy pursuant to article
six of the public officers law. If any such member, manager or author-
ized person of the limited liability company is itself a limited liabil-
ity company or other business entity other than a publicly traded enti-
ty, a REIT, an UPREIT, or a mutual fund, the names and addresses of the
shareholders, directors, officers, members, managers and partners of the
limited liability company or other business entity shall also be
disclosed until full disclosure of ultimate ownership by natural persons
is achieved. For purposes of this subdivision, the terms "members",
"managers", "authorized person", "limited liability company" and "other
business entity" shall have the same meaning as those terms are defined
in section one hundred two of the limited liability company law.
§ 11-2106 Exemptions. a. The following shall be exempt from the
payment of the tax imposed by this chapter and from filing a return:
1. The state of New York, or any of its agencies, instrumentalities,
public corporations, including a public corporation created pursuant to
agreement or compact with another state or the Dominion of Canada, or
political subdivisions;
2. The United States of America, and any of its agencies and instru-
mentalities, insofar, as they are immune from taxation, provided, howev-
er, that the exemption of such governmental bodies or persons shall not
relieve a grantee from them of liability for the tax or from filing a
return.
b. The tax imposed by this chapter shall not apply to any of the
following deeds, instruments or transactions:
1. A deed, instrument or transaction conveying or transferring real
property or an economic interest therein by or to the United Nations or
other world-wide international organizations of which the United States
of America is a member;
2. A deed, instrument or transaction conveying or transferring real
property or an economic interest therein by or to any corporation, or
association, or trust, or community chest, fund or foundation, organized
or operated exclusively for religious, charitable, or educational
purposes, or for the prevention of cruelty to children or animals, and
no part of the net earnings of which inures to the benefit of any
private shareholder or individual and no substantial part of the activ-
ities of which is carrying on propaganda, or otherwise attempting to
influence legislation; provided, however, that nothing in this paragraph
shall include an organization operated for the primary purpose of carry-
ing on a trade or business for profit, whether or not all of its profits
are payable to one or more organizations described in this paragraph;
3. A deed, instrument or transaction conveying or transferring real
property or an economic interest therein to any governmental body or
person exempt from payment of the tax pursuant to subdivision a of this
section;
4. A deed delivered pursuant to a contract made prior to May first,
nineteen hundred fifty-nine;
5. A deed delivered by any governmental body or person exempt from
payment of the tax pursuant to subdivision a of this section as a result
of a sale at a public auction held in accordance with the provisions of
a contract made prior to May first, nineteen hundred fifty-nine;
6. A deed or instrument given solely as security for, or a transaction
the sole purpose of which is to secure, a debt or obligation or a deed
A. 10030 1053
or instrument given, or a transaction entered into, solely for the
purpose of returning such security;
7. A deed, instrument or transaction conveying or transferring real
property or an economic interest therein from a mere agent, dummy, straw
man or conduit to his principal or a deed, instrument or transaction
conveying or transferring real property or an economic interest therein
from the principal to his agent, dummy, straw man or conduit.
8. A deed, instrument or transaction conveying or transferring real
property or an economic interest therein that effects a mere change of
identity or form of ownership or organization to the extent the benefi-
cial ownership of such real property or economic interest therein
remains the same, other than a conveyance to a cooperative housing
corporation of the land and building or buildings comprising the cooper-
ative dwelling or dwellings. For purposes of this paragraph, the term
"cooperative housing corporation" shall not include a housing company
organized and operating pursuant to the provisions of article two, four,
five or eleven of the private housing finance law.
9. A deed, instrument or transaction conveying or transferring real
property or an economic interest therein by or to any housing develop-
ment fund company organized pursuant to article eleven of the private
housing finance law or to an entity, the controlling interest of which
is held by such a company, if at the time of such conveyance or trans-
fer, such real property is subject to, or simultaneously with such
conveyance or transfer is made subject to, a regulatory agreement with
the state of New York, a municipal corporation or any other public
corporation created by or pursuant to any law of the state of New York
that: encumbers the real property for thirty years or more, requires
mutual consent for revocation or amendment, restricts more than fifty
percent of the floor area, other than common areas, to residential real
property, and restricts at least sixty-six and two-thirds percent of
such residential real property to purchase, lease, license or other use
by persons of low income and families of low income within the meaning
of section two of the private housing finance law; provided, however,
that if such regulatory agreement restricts less than one hundred
percent of the floor area, other than common areas, to purchase, lease,
license or other use by persons of low income and families of low income
within the meaning of section two of the private housing finance law,
the tax shall apply to the consideration less the product of the consid-
eration and a fraction, the numerator of which is the floor area that
such regulatory agreement restricts to purchase, lease, license or other
use by persons of low income and families of low income within the mean-
ing of section two of the private housing finance law and the denomina-
tor of which is the entire floor area, minus the floor area of common
areas; provided further, that if such real property is made subject to a
regulatory agreement that meets the terms of this paragraph within two
years of the conveyance or transfer then the commissioner of finance may
issue a refund based on the application of this paragraph pursuant to
the provisions of section 11-2108 of this chapter, treating the transfer
or conveyance as if such real property were subject to such regulatory
agreement as of the date of such transfer or conveyance, if, notwith-
standing any other time limitation set forth in section 11-2108 of this
chapter, application to the commissioner of finance for such refund is
made within twelve months of the effective date of such regulatory
agreement.
c. Notwithstanding any provision of this chapter to the contrary,
where stock of a cooperative housing corporation and the appurtenant
A. 10030 1054
proprietary leasehold are transferred to such cooperative housing corpo-
ration or a wholly owned subsidiary of such housing corporation, or to
the holder of a mortgage on the real property of such cooperative hous-
ing corporation or a wholly owned subsidiary of such holder of a mort-
gage on the real property of such cooperative housing corporation, such
cooperative housing corporation or its wholly owned subsidiary, or such
mortgage holder or its wholly owned subsidiary, shall not be liable as
grantee for the tax determined to be due under this chapter from the
grantor in such transfer, provided that such transfer occurred pursuant
to, as the result of, or in connection with an action, proceeding, or
other procedure to which such cooperative housing corporation is a
party, to enforce a lien, security interest or other rights on or in
such stock and proprietary leasehold, including but not limited to
rights under the proprietary lease. This subdivision shall apply to
transfers occurring on or after June sixteenth, nineteen hundred nine-
ty-two.
§ 11-2107 Determination of tax. If a return required by this chapter
is not filed, or if a return when filed is incorrect or insufficient,
the amount of tax due shall be determined by the commissioner of finance
from such information as may be obtainable, including the assessed valu-
ation of the real property or interest therein. Notice of such determi-
nation shall be given to the person liable for the tax. Such determi-
nation shall finally and irrevocably fix the tax unless the person
against whom it is assessed, within ninety days after the giving of
notice of such determination, or, if the commissioner of finance has
established a conciliation procedure pursuant to section 11-124 of the
code of the preceding municipality and the taxpayer has requested a
conciliation conference in accordance therewith, within ninety days from
the mailing of a conciliation decision or the date of the commissioner's
confirmation of the discontinuance of the conciliation proceeding, both
(1) serves a petition upon the commissioner of finance and (2) files a
petition with the tax appeals tribunal for a hearing, or, unless the
commissioner of finance of his or her own motion shall redetermine the
same. Such hearing and any appeal to the tax appeals tribunal sitting en
banc from the decision rendered in such hearing shall be conducted in
the manner and subject to the requirements prescribed by the tax appeals
tribunal pursuant to sections one hundred sixty-eight through one
hundred seventy-two of the charter of the preceding municipality as it
existed January first, nineteen hundred ninety-four. After such hearing
the tax appeals tribunal shall give notice of its decision to the person
against whom the tax is assessed and to the commissioner of finance. A
decision of the tax appeals tribunal sitting en banc shall be reviewable
for error, illegality or unconstitutionality or any other reason whatso-
ever by a proceeding under article seventy-eight of the civil practice
law and rules if application therefor is made to the supreme court by
the person against whom the tax was assessed within four months after
the giving of the notice of such tax appeals tribunal decision. A
proceeding under article seventy-eight of the civil practice law and
rules shall not be instituted by a taxpayer unless: (a) the amount of
any tax sought to be reviewed, with penalties and interest thereon, if
any, shall be first deposited with the commissioner of finance and there
shall be filed with the commissioner of finance an undertaking, issued
by a surety company authorized to transact business in this state and
approved by the superintendent of insurance of this state as to solvency
and responsibility, in such amount and with such sureties as a justice
of the supreme court shall approve, to the effect that if such proceed-
A. 10030 1055
ing be dismissed or the tax confirmed, the taxpayer will pay all costs
and charges which may accrue in the prosecution of the proceeding; or
(b) at the option of the taxpayer such undertaking filed with the
commissioner of finance may be in a sum sufficient to cover the taxes,
penalties and interest thereon stated in such decision plus the costs
and charges which may accrue against it in the prosecution of the
proceeding, in which event the taxpayer shall not be required to deposit
such taxes, penalties and interest as a condition precedent to the
application.
§ 11-2108 Refunds. a. In the manner provided in this section the
commissioner of finance shall refund or credit, without interest, any
tax, penalty or interest erroneously, illegally or unconstitutionally
collected or paid if application to the commissioner of finance for such
refund shall be made within one year from the payment thereof. Whenever
a refund is made or denied by the commissioner of finance, the commis-
sioner shall state his or her reason therefor and give notice thereof to
the taxpayer in writing. Such application may be made by the grantor,
grantee or other person who has actually paid the tax. The commissioner
of finance may, in lieu of any refund required to be made, allow credit
therefor on payments due from the applicant.
b. Any determination of the commissioner of finance denying a refund
or credit pursuant to subdivision a of this section shall be final and
irrevocable unless the applicant for such refund or credit, within nine-
ty days from the mailing of notice of such determination, or, if the
commissioner of finance has established a conciliation procedure pursu-
ant to section 11-124 of the code of the preceding municipality and the
applicant has requested a conciliation conference in accordance there-
with, within ninety days from the mailing of a conciliation decision or
the date of the commissioner's confirmation of the discontinuance of the
conciliation proceeding, both (1) serves a petition upon the commission-
er of finance and (2) files a petition with the tax appeals tribunal for
a hearing. Such petition for a refund or credit made as herein provided
shall be deemed an application for a revision of any tax, penalty or
interest complained of. Such hearing and any appeal to the tax appeals
tribunal sitting en banc from the decision rendered in such hearing
shall be conducted in the manner and subject to the requirements
prescribed by the tax appeals tribunal pursuant to sections one hundred
sixty-eight through one hundred seventy-two of the charter of the
preceding municipality as it existed January first, nineteen hundred
ninety-four. After such hearing, the tax appeals tribunal shall give
notice of its decision to the applicant and the commissioner of finance.
The applicant shall be entitled to review such decision of the tax
appeals tribunal sitting en banc by a proceeding pursuant to article
seventy-eight of the civil practice law and rules, provided such
proceeding is instituted within four months after the giving of notice
of such decision, and provided, in the case of an application by a
taxpayer, that a final determination of tax due was not previously made.
Such a proceeding shall not be instituted by a taxpayer unless an under-
taking is filed with the commissioner of finance in such amount and with
such sureties as a justice of the supreme court shall approve to the
effect that if such proceeding be dismissed or the tax confirmed, the
taxpayer will pay all costs and charges which may accrue in the prose-
cution of such proceeding.
c. A person shall not be entitled to a revision, refund or credit
under this section of a tax, interest or penalty which had been deter-
mined to be due pursuant to the provisions of section 11-2107 of this
A. 10030 1056
chapter where he or she has had a hearing or an opportunity for a hear-
ing, as provided in said section, or has failed to avail himself or
herself of the remedies therein provided. No refund or credit shall be
made of a tax, interest or penalty paid after a determination by the
commissioner of finance made pursuant to section 11-2107 of this chapter
unless it be found that such determination was erroneous, illegal or
unconstitutional or otherwise improper, by the tax appeals tribunal
after a hearing, or on the commissioner of finance's own motion, or, if
such tax appeals tribunal affirms in whole or in part the determination
of the commissioner of finance, in a proceeding under article seventy-
eight of the civil practice law and rules, pursuant to the provisions of
said section, in which event refund or credit without interest shall be
made of the tax, interest or penalty found to have been overpaid.
§ 11-2109 Reserves. In cases where the grantor or grantee has
applied for a refund and has instituted a proceeding under article
seventy-eight of the civil practice law and rules to review a determi-
nation adverse to him or her on his or her application for refund, the
comptroller shall set up appropriate reserves to meet any decision
adverse to the city.
§ 11-2110 Remedies exclusive. The remedies provided by sections
11-2107 and 11-2108 of this chapter shall be exclusive remedies avail-
able to any person for the review of tax liability imposed by this chap-
ter; and no determination or proposed determination of tax or determi-
nation on any application for refund shall be enjoined or reviewed by an
action for declaratory judgment, an action for money had and received or
by any action or proceeding other than a proceeding in the nature of a
certiorari proceeding under article seventy-eight of the civil practice
law and rules; provided, however, that a taxpayer may proceed by declar-
atory judgment if he or she institutes suit within thirty days after a
deficiency assessment is made and pays the amount of the deficiency
assessment to the commissioner of finance prior to the institution of
such suit and posts a bond for costs as provided in section 11-2107 of
this chapter.
§ 11-2111 Proceedings to recover tax. a. Whenever any grantor or
grantee shall fail to pay any tax, penalty or interest imposed by this
chapter as herein provided, the corporation counsel shall, upon the
request of the commissioner of finance bring or cause to be brought an
action to enforce the payment of the same on behalf of the city of
Staten Island in any court of the state of New York or of any other
state or of the United States. If, however, the commissioner of finance
in his or her discretion believes that any such grantor or grantee
subject to the provisions of this chapter is about to cease business,
leave the state or remove or dissipate the assets out of which the tax
or penalty might be satisfied, and that any such tax or penalty will not
be paid when due, such commissioner may declare such tax or penalty to
be immediately due and payable and may issue a warrant immediately.
b. As an additional or alternate remedy, the commissioner of finance
may issue a warrant, directed to the city sheriff commanding him or her
to levy upon and sell the real and personal property of the grantor,
grantee or other person liable for the tax which may be found within the
city, for the payment of the amount thereof, with any penalty and inter-
est, and the cost of executing the warrant, and to return such warrant
to the commissioner of finance and to pay to him or her the money
collected by virtue thereof within sixty days after the receipt of such
warrant. The city sheriff shall within five days after the receipt of
the warrant file with the county clerk a copy thereof, and thereupon
A. 10030 1057
such clerk shall enter in the judgment docket the name of the person
mentioned in the warrant and the amount of the tax, penalty and interest
for which the warrant is issued and the date when such copy is filed.
Thereupon the amount of such warrant so docketed shall become a lien
upon the title to and the interest in real and personal property of the
person against whom the warrant is issued. The city sheriff shall then
proceed upon the warrant in the same manner, and with like effect, as
that provided by law in respect to executions issued against property
upon judgments of a court of record and for services in executing the
warrant he or she shall be entitled to the same fees, which such sheriff
may collect in the same manner. In the discretion of the commissioner
of finance a warrant of like terms, force and effect may be issued and
directed to an officer or employee of the department of finance, and in
the execution thereof such officer or employee shall have all the powers
conferred by law upon sheriffs, but shall be entitled to no fee or
compensation in excess of the actual expenses paid in the performance of
such duty. If a warrant is returned not satisfied in full, the commis-
sioner of finance may from time to time issue new warrants and shall
also have the same remedies to enforce the amount due thereunder as if
the city had recovered judgment therefor and execution thereon had been
returned unsatisfied.
c. The commissioner of finance, if he or she finds that the interests
of the city will not thereby be jeopardized, and upon such conditions as
the commissioner of finance may require, may release any property from
the lien of any warrant or vacate such warrant for unpaid taxes, addi-
tions to tax, penalties and interest filed pursuant to subdivision b of
this section, and such release or vacating of the warrant may be
recorded in the office of any recording officer in which such warrant
has been filed. The clerk shall thereupon cancel and discharge as of the
original date of docketing the vacated warrant.
§ 11-2112 General powers of the commissioner of finance. In addition
to the powers granted to the commissioner of finance in this chapter, he
or she is hereby authorized and empowered:
1. To make, adopt and amend rules and regulations appropriate to the
carrying out of this chapter and the purposes thereof;
2. To extend, for cause shown, the time for filing any return for a
period not exceeding thirty days; and to compromise disputed claims in
connection with the taxes hereby imposed;
3. To request information from the tax commission of the state of New
York or the treasury department of the United States relative to any
person; and to afford returns, reports and other information to such tax
commission or such treasury department relative to any person, any other
provision of this chapter to the contrary notwithstanding;
4. To delegate his or her functions under this section to a deputy
commissioner of finance or any employee or employees of the department
of finance;
5. To prescribe the methods for determining the consideration and net
consideration attributable to that portion of real property located
partly within and partly without the city of Staten Island which is
located within the city of Staten Island or any interest therein;
6. To require any grantor or grantee to keep such records, and for
such length of time as may be required for the proper administration of
this chapter and to furnish such records to the commissioner of finance
upon request;
7. To assess, determine, revise and adjust the taxes imposed under
this chapter.
A. 10030 1058
§ 11-2113 Administration of oaths and compelling testimony. a. The
commissioner of finance, his or her employees or agents duly designated
and authorized by him or her, the tax appeals tribunal and any of its
duly designated and authorized employees or agents shall have power to
administer oaths and take affidavits in relation to any matter or
proceeding in the exercise of their powers and duties under this chap-
ter. The commissioner of finance and the tax appeals tribunal shall have
power to subpoena and require the attendance of witnesses and the
production of books, papers and documents to secure information perti-
nent to the performance of the duties of the commissioner or of the tax
appeals tribunal under this chapter and of the enforcement of this chap-
ter and to examine them in relation thereto, and to issue commissions
for the examination of witnesses who are out of the state or unable to
attend before such commissioner or the tax appeals tribunal or excused
from attendance.
b. A justice of the supreme court either in court or at chambers shall
have power summarily to enforce by proper proceedings the attendance and
testimony of witnesses and the production and examination of books,
papers and documents called for by the subpoena of the commissioner of
finance or the tax appeals tribunal under this chapter.
c. Cross-reference; criminal penalties. For failure to obey subpoenas
or for testifying falsely, see section 11-4007 of this title; for
supplying false or fraudulent information, see section 11-4009 of this
title.
d. The officers who serve the summons or subpoena of the commissioner
of finance or the tax appeals tribunal and witnesses attending in
response thereto shall be entitled to the same fees as are allowed to
officers and witnesses in civil cases in courts of record, except as
herein otherwise provided. Such officers shall be the city sheriff and
his or her duly appointed deputies or any officers or employees of the
department of finance or the tax appeals tribunal, designated to serve
such process.
§ 11-2114 Interest and penalties. (a) Interest on underpayments. If
any amount of tax is not paid on or before the last date prescribed for
payment, without regard to any extension of time granted for payment,
interest on such amount at the rate set by the commissioner of finance
pursuant to subdivision (g) of this section, or, if no rate is set, at
the rate of seven and one-half percent per annum, shall be paid for the
period from such last date to the date of payment. In computing the
amount of interest to be paid, such interest shall be compounded daily.
Interest under this subdivision shall not be paid if the amount thereof
is less than one dollar.
(b) (1) Failure to file return. (A) In case of failure to file a
return under this chapter on or before the prescribed date, determined
with regard to any extension of time for filing, unless it is shown that
such failure is due to reasonable cause and not due to willful neglect,
there shall be added to the amount required to be shown as tax on such
return five percent of the amount of such tax if the failure is for not
more than one month, with an additional five percent for each additional
month or fraction thereof during which such failure continues, not
exceeding twenty-five percent in the aggregate.
(B) In the case of a failure to file a return of tax within sixty days
of the date prescribed for filing of such return, determined with regard
to any extension of time for filing, unless it is shown that such fail-
ure is due to reasonable cause and not due to willful neglect, the addi-
tion to tax under subparagraph (A) of this paragraph shall not be less
A. 10030 1059
than the lesser of one hundred dollars or one hundred percent of the
amount required to be shown as tax on such return.
(C) For purposes of this paragraph, the amount of tax required to be
shown on the return shall be reduced by the amount of any part of the
tax which is paid on or before the date prescribed for payment of the
tax and by the amount of any credit against the tax which may be claimed
upon the return.
(2) Failure to pay tax shown on return. In case of failure to pay the
amount shown as tax on a return required to be filed under this chapter
on or before the prescribed date, determined with regard to any exten-
sion of time for payment, unless it is shown that such failure is due to
reasonable cause and not due to willful neglect, there shall be added to
the amount shown as tax on such return one-half of one percent of the
amount of such tax if the failure is not for more than one month, with
an additional one-half of one percent for each additional month or frac-
tion thereof during which such failure continues, not exceeding twenty-
five percent in the aggregate. For the purpose of computing the addition
for any month the amount of tax shown on the return shall be reduced by
the amount of any part of the tax which is paid on or before the begin-
ning of such month and by the amount of any credit against the tax which
may be claimed upon the return. If the amount of tax required to be
shown on a return is less than the amount shown as tax on such return,
this paragraph shall be applied by substituting such lower amount.
(3) Failure to pay tax required to be shown on return. In case of
failure to pay any amount in respect of any tax required to be shown on
a return required to be filed under this chapter which is not so shown,
including a determination made pursuant to section 11-2107 of this chap-
ter, within ten days of the date of a notice and demand therefor, unless
it is shown that such failure is due to reasonable cause and not due to
willful neglect, there shall be added to the amount of tax stated in
such notice and demand one-half of one percent of such tax if the fail-
ure is not for more than one month, with an additional one-half of one
percent for each additional month or fraction thereof during which such
failure continues, not exceeding twenty-five percent in the aggregate.
For the purpose of computing the addition for any month, the amount of
tax stated in the notice and demand shall be reduced by the amount of
any part of the tax which is paid before the beginning of such month.
(4) Limitations on additions.
(A) With respect to any return, the amount of the addition under para-
graph one of this subdivision shall be reduced by the amount of the
addition under paragraph two of this subdivision for any month to which
an addition applies under both paragraphs one and two of this subdivi-
sion. In any case described in subparagraph (B) of paragraph one of this
subdivision, the amount of the addition under such paragraph one shall
not be reduced below the amount provided in such subparagraph.
(B) With respect to any return, the maximum amount of the addition
permitted under paragraph three of this subdivision shall be reduced by
the amount of the addition under paragraph one of this subdivision,
determined without regard to subparagraph (B) of such paragraph one,
which is attributable to the tax for which the notice and demand is made
and which is not paid within ten days of such notice and demand.
(c) Underpayment due to negligence. (1) If any part of an underpayment
of tax is due to negligence or intentional disregard of this chapter or
any rules or regulations hereunder, but without intent to defraud, there
shall be added to the tax a penalty equal to five percent of the under-
payment.
A. 10030 1060
(2) There shall be added to the tax, in addition to the amount deter-
mined under paragraph one of this subdivision, an amount equal to fifty
percent of the interest payable under subdivision (a) of this section
with respect to the portion of the underpayment described in such para-
graph one which is attributable to the negligence or intentional disre-
gard referred to in such paragraph one, for the period beginning on the
last date prescribed by law for payment of such underpayment, determined
without regard to any extension, and ending on the date of the assess-
ment of the tax, or, if earlier, the date of the payment of the tax.
(d) Underpayment due to fraud. (1) If any part of an underpayment of
tax is due to fraud, there shall be added to the tax a penalty equal to
fifty percent of the underpayment.
(2) There shall be added to the tax, in addition to the penalty deter-
mined under paragraph one of this subdivision, an amount equal to fifty
percent of the interest payable under subdivision (a) of this section
with respect to the portion of the underpayment described in such para-
graph one which is attributable to fraud, for the period beginning on
the last day prescribed by law for payment of such underpayment, deter-
mined without regard to any extension, and ending on the date of the
assessment of the tax, or, if earlier, the date of the payment of the
tax.
(3) The penalty under this subdivision shall be in lieu of any other
addition to tax imposed by subdivision (b) or (c) of this section.
(e) Additional penalty. Any person who, with fraudulent intent, shall
fail to pay any tax imposed by this chapter, or to make, render, sign or
certify any return, or to supply any information within the time
required by or under this chapter, shall be liable for a penalty of not
more than one thousand dollars, in addition to any other amounts
required under this chapter to be imposed, assessed and collected by the
commissioner of finance. The commissioner of finance shall have the
power, in his or her discretion, to waive, reduce or compromise any
penalty under this subdivision.
(f) The interest and penalties imposed by this section shall be paid
and disposed of in the same manner as other revenues from this chapter.
Unpaid interest and penalties may be enforced in the same manner as the
tax imposed by this chapter.
(g)(1) Authority to set interest rates. The commissioner of finance
shall set the rate of interest to be paid pursuant to subdivision (a) of
this section, but if no such rate of interest is set, such rate shall be
deemed to be set at seven and one-half percent per annum. Such rate
shall be the rate prescribed in paragraph two of this subdivision but
shall not be less than seven and one-half percent per annum. Any such
rate set by the commissioner of finance shall apply to taxes, or any
portion thereof, which remain or become due on or after the date on
which such rate becomes effective and shall apply only with respect to
interest computed or computable for periods or portions of periods
occurring in the period in which such rate is in effect.
(2) General rule. The rate of interest set under this subdivision
shall be the sum of (i) the federal short-term rate as provided under
paragraph three of this subdivision, plus (ii) seven percentage points.
(3) Federal short-term rate. For purposes of this subdivision:
(A) The federal short-term rate for any month shall be the federal
short-term rate determined by the United States secretary of the treas-
ury during such month in accordance with subsection (d) of section
twelve hundred seventy-four of the internal revenue code for use in
connection with section six thousand six hundred twenty-one of the
A. 10030 1061
internal revenue code. Any such rate shall be rounded to the nearest
full percent, or, if a multiple of one-half of one percent, such rate
shall be increased to the next highest full percent.
(B) Period during which rate applies.
(i) In general. Except as provided in clause (ii) of this subpara-
graph, the federal short-term rate for the first month in each calendar
quarter shall apply during the first calendar quarter beginning after
such month.
(ii) Special rule for the month of September, nineteen hundred eight-
y-nine. The federal short-term rate for the month of April, nineteen
hundred eighty-nine shall apply with respect to setting the rate of
interest for the month of September, nineteen hundred eighty-nine.
(4) Publication of interest rate. The commissioner of finance shall
cause to be published in the City Record, and give other appropriate
general notice of, the interest rate to be set under this subdivision no
later than twenty days preceding the first day of the calendar quarter
during which such interest rate applies. The setting and publication of
such interest rate shall not be included within paragraph (a) of subdi-
vision five of section one thousand forty-one of the city charter of the
preceding municipality as it existed January first, nineteen hundred
ninety-four relating to the definition of a rule.
(h) Miscellaneous. (1) The certificate of the commissioner to the
effect that a tax has not been paid or that information has not been
supplied pursuant to the provisions of this chapter shall be presumptive
evidence thereof.
(2) Cross-reference: For criminal penalties, see chapter forty of
this title.
(i) Failure to file information return. If a cooperative housing
corporation fails to file an information return required under subdivi-
sion g of section 11-2105 of this chapter on or before the prescribed
date, determined with regard to any extension of time for filing, unless
it is shown that such failure is due to reasonable cause and not due to
willful neglect, there shall be imposed on such cooperative housing
corporation a penalty of one hundred dollars for each such failure.
§ 11-2115 Returns to be secret. a. Except in accordance with proper
judicial order, or as otherwise provided by law, it shall be unlawful
for the commissioner of finance, register or tax appeals tribunal or any
officer or employee of the department of finance, register or tax
appeals tribunal to divulge or make known in any manner any information
contained in or relating to any return provided for by this chapter. The
officers charged with the custody of such returns shall not be required
to produce any of them or evidence of anything contained in them in any
action or proceeding in any court, except on behalf of the commissioner
of finance in an action or proceeding under the provisions of this chap-
ter, or on behalf of any party to an action or proceeding under the
provisions of this chapter when the returns or facts shown thereby are
directly involved in such action or proceeding, in either of which
events the court may require the production of, and may admit in
evidence, so much of said returns or of the facts shown thereby, as are
pertinent to the action or proceeding and no more. Nothing in this
section shall be construed to prohibit the delivery to a grantor or
grantee of a deed or to any subsequent owner of the real property
conveyed by such deed or to the duly authorized representative of any of
them of a certified copy of any return filed in connection with the tax
on such deed; nor to prohibit the delivery of such a certified copy of
such return or of any information contained in or relating thereto to
A. 10030 1062
the United States of America or any department thereof, the state of New
York or any department thereof, the city of Staten Island or any depart-
ment thereof provided the same is required for official business; nor to
prohibit the inspection for official business of such returns by the
register, the corporation counsel or other legal representatives of the
city or by the district attorney of Richmond county; nor to prohibit the
publication of statistics so classified as to prevent the identification
of particular returns or items thereof.
b. (1) Any officer or employee of the city who willfully violates the
provisions of subdivision a of this section shall be dismissed from
office and be incapable of holding any public office in this city for a
period of five years thereafter.
(2) Cross-reference: For criminal penalties, see chapter forty of
this title.
c. This section shall be deemed a state statute for purposes of para-
graph (a) of subdivision two of section eighty-seven of the public offi-
cers law.
d. Notwithstanding anything in subdivision a of this section to the
contrary, if a taxpayer has petitioned the tax appeals tribunal for
administrative review as provided in section one hundred seventy of the
charter of the preceding municipality as it existed January first, nine-
teen hundred ninety-four, the commissioner of finance shall be author-
ized to present to the tribunal any report or return of such taxpayer,
or any information contained therein or relating thereto, which may be
material or relevant to the proceeding before the tribunal. The tax
appeals tribunal shall be authorized to publish a copy or a summary of
any decision rendered pursuant to section one hundred seventy-one of the
charter of the preceding municipality as it existed January first, nine-
teen hundred ninety-four.
e. This section shall not apply to any information contained in or
relating to a return filed on or after the first day of January, two
thousand three with respect to a transaction or transfer occurring on or
after that date; provided, however, that this section shall continue to
apply to any social security account number contained in any report or
return pursuant to this chapter.
§ 11-2116 Notices and limitations of time. a. Any notice authorized
or required under the provisions of this chapter may be given by mailing
the same to the person for whom it is intended in a postpaid envelope
addressed to such person at the address given in the last return filed
by him or her pursuant to the provisions of this chapter in any applica-
tion made by him or her, or in any deed or instrument which is the
subject of the notice, or, if no return has been filed or application
made or address stated in the deed or instrument, then to such address
as may be obtainable. The mailing of such notice shall be presumptive
evidence of the receipt of the same by the person to whom addressed.
Any period of time which is determined according to the provisions of
this chapter by the giving of notice shall commence to run from the date
of mailing of such notice.
b. The provisions of the civil practice law and rules or any other law
relative to limitations of time for the enforcement of a civil remedy
shall not apply to any proceeding or action taken by the city to levy,
appraise, assess, determine or enforce the collection of any tax or
penalty provided by this chapter. However, except in the case of a
wilfully false or fraudulent return with intent to evade the tax, no
assessment of additional tax shall be made after the expiration of more
than three years from the date of the filing of a return; provided,
A. 10030 1063
however, that where no return has been filed as provided by law the tax
may be assessed at any time.
c. Where, before the expiration of the period prescribed in this
section for the assessment of an additional tax, a taxpayer has
consented in writing that such period be extended, the amount of such
additional tax due may be determined at any time within such extended
period. The period so extended may be further extended by subsequent
consents in writing made before the expiration of the extended period.
d. Except as otherwise provided in this subdivision, if any return,
claim, statement, notice, application, or other document required to be
filed, or any payment required to be made, within a prescribed period or
on or before a prescribed date under authority of any provision of this
chapter is, after such period or such date, delivered by United States
mail to the commissioner of finance, the tax appeals tribunal, bureau,
office, officer or person with which or with whom such document is
required to be filed, or to which or to whom such payment is required to
be made, the date of the United States postmark stamped on the envelope
shall be deemed to be the date of delivery. This subdivision shall apply
only if the postmark date falls within the prescribed period or on or
before the prescribed date for the filing of such document, or for
making the payment, including any extension granted for such filing or
payment, and only if such document or payment was deposited in the mail,
postage prepaid, properly addressed to the commissioner of finance, the
tax appeals tribunal, bureau, office, officer or person with which or
with whom the document is required to be filed or to which or to whom
such payment is required to be made. If any document is sent by United
States registered mail, such registration shall be prima facie evidence
that such document was delivered to the commissioner of finance, the tax
appeals tribunal, bureau, office, officer or person to which or to whom
addressed, and the date of registration shall be deemed the postmark
date. The commissioner of finance and, where relevant, the tax appeals
tribunal are authorized to provide by regulation the extent to which the
provisions of the preceding sentence with respect to prima facie
evidence of delivery and the postmark date shall apply to certified
mail. Except as provided in subdivision f of this section, this subdivi-
sion shall apply in the case of postmarks not made by the United States
postal service only if and to the extent provided by regulation of the
commissioner of finance or, where relevant, the tax appeals tribunal.
Any return filed electronically shall be deemed to be filed on the date
of issuance by the commissioner of finance of a confirmation.
e. When the last day prescribed under authority of this chapter,
including any extension of time, for performing any act falls on a
Saturday, Sunday or legal holiday in the state, the performance of such
act shall be considered timely if it is performed on the next succeeding
day which is not a Saturday, Sunday or legal holiday.
f. (1) Any reference in subdivision d of this section to the United
States mail shall be treated as including a reference to any delivery
service designated by the secretary of the treasury of the United States
pursuant to section seventy-five hundred two of the internal revenue
code and any reference in subdivision d of this section to a United
States postmark shall be treated as including a reference to any date
recorded or marked in the manner described in section seventy-five
hundred two of the internal revenue code by a designated delivery
service. If the commissioner of finance finds that any delivery service
designated by such secretary is inadequate for the needs of the city,
the commissioner of finance may withdraw such designation for purposes
A. 10030 1064
of this title. The commissioner of finance may also designate additional
delivery services meeting the criteria of section seventy-five hundred
two of the internal revenue code for purposes of this title, or may
withdraw any such designation if the commissioner of finance finds that
a delivery service so designated is inadequate for the needs of the
city. Any reference in subdivision d of this section to the United
States mail shall be treated as including a reference to any delivery
service designated by the commissioner of finance and any reference in
subdivision d of this section to a United States postmark shall be
treated as including a reference to any date recorded or marked in the
manner described in section seventy-five hundred two of the internal
revenue code by a delivery service designated by the commissioner of
finance, provided, however, any withdrawal of designation or additional
designation by the commissioner of finance shall not be effective for
purposes of service upon the tax appeals tribunal, unless and until such
withdrawal of designation or additional designation is ratified by the
president of the tax appeals tribunal.
(2) Any equivalent of registered or certified mail designated by the
United States secretary of the treasury, or as may be designated by the
commissioner of finance pursuant to the same criteria used by such
secretary for such designations pursuant to section seventy-five hundred
two of the internal revenue code, shall be included within the meaning
of registered or certified mail as used in subdivision d of this
section. If the commissioner of finance finds that any equivalent of
registered or certified mail designated by such secretary or the commis-
sioner of finance is inadequate for the needs of the city, the commis-
sioner of finance may withdraw such designation for purposes of this
title, provided, however, any withdrawal of designation or additional
designation by the commissioner of finance shall not be effective for
purposes of service upon the tax appeals tribunal, unless and until such
withdrawal of designation or additional designation is ratified by the
president of the tax appeals tribunal.
§ 11-2117 Construction and enforcement. This chapter shall be
construed and enforced in conformity with chapter ninety-three of the
laws of nineteen hundred sixty-five, as amended.
§ 11-2118 Disposition of revenues. Except as otherwise provided, all
revenues resulting from the imposition of the tax under this chapter
shall be paid into the treasury of the city and shall be credited to and
deposited in the general fund of the city. Except as otherwise
provided, no part of such revenues may be expended unless appropriated
in the annual budget of the city.
§ 11-2119 Foreclosure proceedings. Where the conveyance consists of a
transfer of property made as a result of an order of the court in a
foreclosure proceeding ordering the sale of such property, the referee
or sheriff effectuating the transfer shall not be liable for any inter-
est or penalties authorized by this chapter or chapter forty of this
title.
CHAPTER 22
TAX ON OWNERS OF MOTOR VEHICLES
§ 11-2201 Definitions. When used in this chapter, the following terms
shall mean and include:
1. "City". The city of Staten Island.
2. "Commissioner of finance". The commissioner of finance of the city.
A. 10030 1065
3. "Highway". The entire width between the boundary lines of every way
publicly maintained when any part thereof is open to the use of the
public for purposes of vehicular travel.
4. "Individual resident". One or more natural persons other than a
firm, copartnership, trustee or trustees conducting a business or asso-
ciation who, or one of whom, owns a motor vehicle registered or required
to be registered pursuant to section four hundred one of the vehicle and
traffic law, the registration fees for which are provided for by subdi-
vision six of such section, who, at the time he or she makes application
for registration or renewal thereof of such motor vehicle, or such
application is made on his or her behalf: (a) is domiciled in the city,
unless he or she maintains no permanent place of abode in the city,
maintains a permanent place of abode elsewhere, and during the period of
one year next preceding the date upon which such application is made,
spent in the aggregate not more than thirty days in the city; or (b) is
not domiciled in the city but maintains a permanent place of abode in
the city and, during the period of one year next preceding the date upon
which such application is made, spent in the aggregate more than one
hundred eighty-three days in the city, unless such individual is in the
armed forces of the United States.
5. "Motor vehicle". Every vehicle, except electrically-driven invalid
chairs being operated or driven by an invalid, operated or driven upon a
public highway by any power, other than muscular power, which includes
electric power obtained from overhead trolley wires, except vehicles
which run only upon rails or tracks.
6. "Other resident". Every firm, copartnership, trustee or trustees
conducting a business or association or a corporation, who or which
regularly keeps, stores, garages or maintains within the city a motor
vehicle owned by it which, at the time it makes application for regis-
tration or renewal of registration thereof, is registered or required to
be registered pursuant to subdivision six of section four hundred one of
the vehicle and traffic law.
7. "Person". Unless otherwise indicated, an individual, partnership,
society, association, joint-stock company, corporation, estate, receiv-
er, trustee, assignee, referee or any other person acting in a fiduciary
or representative capacity, whether appointed by a court or otherwise,
and any other form of unincorporated enterprise.
8. "Owner". A person, other than a lien holder, having the property in
or title to a vehicle. The term includes a person entitled to the use
and possession of a vehicle subject to a security interest in another
person.
9. "Vehicle". Every device in, upon or by which any person or property
is or may be transported or drawn upon a highway, except devices moved
by human power or used exclusively upon stationary rails or tracks.
10. "Leased or rented passenger motor vehicles". Any motor vehicle
owned by any person engaged in the business of renting or leasing motor
vehicles to be operated on the public highways for carrying passengers
registered or required to be registered pursuant to any provision of
section four hundred one of the vehicle and traffic law, which vehicle
at the time when application is made for registration, re-registration
or renewal thereof is regularly kept, stored, garaged or maintained in
the city, including such vehicles which have been rented and leased by
the owner and are in possession of lessees when such application for
registration, re-registration or renewal is made.
A. 10030 1066
11. "Tax appeals tribunal." The tax appeals tribunal established by
section one hundred sixty-eight of the charter of the preceding munici-
pality as it existed January first, nineteen hundred ninety-four.
§ 11-2202 Imposition of tax. Notwithstanding the provisions of
section four hundred of the vehicle and traffic law and of subdivision
ten of section four hundred one of the vehicle and traffic law to the
contrary, a tax of fifteen dollars per annum is hereby imposed:
1. With respect to each motor vehicle registered or required to be
registered pursuant to subdivision six of section four hundred one of
the vehicle and traffic law:
a. Upon each individual resident for each such motor vehicle regis-
tered or for which registration is renewed, or required to be registered
or renewed by him or her; and
b. Upon each other resident of each such motor vehicle regularly
kept, stored, garaged or maintained in the city and registered or
required to be registered or renewed by such other resident; and
2. With respect to each leased or rented passenger motor vehicle,
upon the owner thereof.
§ 11-2203 Exemptions. The tax imposed by this chapter shall not be
imposed upon:
(1) owners of motor vehicles, the registration fees for which are or
may be prescribed, governed or established by subdivisions seven, except
for leased or rented passenger vehicles, eight, twelve, thirteen,
sixteen of section four hundred one, articles fifteen and sixteen, or
section four hundred twenty of the vehicle and traffic law;
(2) any owner to whom the provisions of the vehicle and traffic law
relative to registration and equipment of motor vehicles are made inap-
plicable by the provisions of article three of such law, for the period
of such inapplicability;
(3) the state of New York, or any of its agencies, instrumentalities,
public corporations, including a public corporation created pursuant to
agreement or compact with another state or the Dominion of Canada, or
political subdivision;
(4) the United States of America, and any of its agencies and instru-
mentalities insofar as it is immune from taxation;
(5) the United Nations or other international organizations of which
the United States of America is a member;
(6) any corporation, or association, or trust, or community chest,
fund or foundation, organized and operated exclusively for religious,
charitable, or educational purposes, or for the prevention of cruelty to
children or animals, and no part of the net earnings of which inures to
the benefit of any private shareholder or individual and no substantial
part of the activities of which is carrying on propaganda, or otherwise
attempting to influence legislation; provided, however, that nothing in
this subdivision shall include an organization operated for the primary
purpose of carrying on a trade or business for profit, whether or not
all of its profits are payable to one or more organizations described in
this subdivision.
§ 11-2204 Payment of tax and evidence of tax payment. Every owner of
a motor vehicle subject to tax under this chapter shall pay the tax
thereon to the commissioner of motor vehicles of the state of New York
on or before the date upon which he or she registers or renews his or
her registration thereof or is required to register or renew his or her
registration thereof pursuant to section four hundred one of the vehicle
and traffic law.
A. 10030 1067
Notwithstanding the provisions of section four hundred of the vehicle
and traffic law to the contrary, the payment of such tax shall be a
condition precedent to the registration or renewal thereof of such motor
vehicle and to the issuance of any certificate of registration and
plates or removable tag specified in subdivision three of section four
hundred one and in sections four hundred three and four hundred four of
the vehicle and traffic law, and no such certificate of registration,
plates or tag shall be issued unless such tax has been paid. The
commissioner of motor vehicles shall not issue a registration certif-
icate for any motor vehicle for which the registrant's address is with-
in any such city, except upon proof, in a form approved by the commis-
sioner of motor vehicles, that such tax has been paid, or is not due,
with respect to such motor vehicle. The commissioner of motor vehicles,
upon the payment of such tax or upon the application of any person
exempt therefrom, shall furnish to each taxpayer paying the tax a
receipt for such tax and to each such taxpayer or exempt person a state-
ment, document or other form approved by the commissioner of motor vehi-
cles, showing that such tax has been paid or is not due, with respect to
such motor vehicle.
§ 11-2205 Returns. a. At the time the payment of the tax imposed by
this chapter becomes due, every person subject to tax under this chapter
shall file a return with the commissioner of motor vehicles in form and
containing such information as may be prescribed by such commissioner of
motor vehicles. The taxpayer's application for registration or the
renewal of registration shall constitute the return required under this
chapter, unless the commissioner of motor vehicles, by regulation, shall
otherwise provide.
b. Returns shall be preserved for three years and thereafter until
the commissioner of motor vehicles permits them to be destroyed.
c. The commissioner of motor vehicles may require amended returns or
certificates of facts to be filed within twenty days after notice and to
contain the information specified in the notice. Any such certificate
shall be deemed to be part of the return required to be filed.
d. If a return required by this chapter is not filed or if a return
when filed is incorrect or insufficient on its face the commissioner of
motor vehicles or the commissioner of finance if designated as his or
her agent shall take the necessary steps to enforce the filing of such a
return or of a corrected return.
§ 11-2206 Determination of tax. If a return required by this chapter
is not filed or if a return when filed is incorrect or insufficient, or
if a tax or any part thereof due pursuant to this chapter be not paid
when required, the amount of tax due shall be determined by the commis-
sioner of motor vehicles or by the commissioner of finance if designated
as his or her agent, from such information as may be obtainable, includ-
ing motor vehicle registration with the department of motor vehicles of
the state of New York or other factors. Notice of such determination
shall be given to the person liable for the tax. Such a determination by
the commissioner of motor vehicles shall finally and irrevocably fix the
tax unless the person against whom it is assessed, within ninety days
after the giving of notice of such determination, shall apply to the
commissioner of motor vehicles for a hearing, or unless such commission-
er of his or her own motion shall redetermine the same. If the commis-
sioner of finance is designated as the agent of the commissioner of
motor vehicles, such a determination by the commissioner of finance
shall finally and irrevocably fix the tax unless the person against whom
it is assessed, within ninety days after the giving of such determi-
A. 10030 1068
nation, or, if the commissioner of finance has established a concil-
iation procedure pursuant to section 11-124 of the code of the preceding
municipality and the taxpayer has requested a conciliation conference in
accordance therewith, within ninety days from the mailing of a concil-
iation decision or the date of the commissioner's confirmation of the
discontinuance of the conciliation proceeding, both (1) serves a peti-
tion upon the commissioner of finance and (2) applies to the tax appeals
tribunal for a hearing by filing a petition, or unless the commissioner
of finance of his or her own motion shall redetermine the same. A hear-
ing following a petition to the tax appeals tribunal and any appeal to
the tax appeals tribunal sitting en banc from the decision rendered in
such hearing shall be conducted in the manner and subject to the
requirements prescribed by the tax appeals tribunal pursuant to sections
one hundred sixty-eight through one hundred seventy-two of the charter
of the preceding municipality as it existed January first, nineteen
hundred ninety-four. After such hearing by the commissioner of motor
vehicles or the tax appeals tribunal, the commissioner of motor vehi-
cles, if he or she holds the hearing, or the tax appeals tribunal if the
tax appeals tribunal holds the hearing, shall give notice of the deter-
mination or decision to the person against whom the tax is assessed and
in the case of a tax appeals tribunal decision, to the commissioner of
finance. Such determination by the commissioner of motor vehicles, or a
decision of the tax appeals tribunal sitting en banc shall be reviewable
for error, illegality or unconstitutionality or any other reason whatso-
ever by a proceeding under article seventy-eight of the civil practice
law and rules if application therefor is made to the supreme court by
the person against whom the tax was assessed within four months after
the giving of the notice of such determination or tax appeals tribunal
decision. A proceeding under article seventy-eight of the civil prac-
tice law and rules shall not be instituted by a taxpayer unless (a) the
amount of any tax sought to be reviewed, with penalties and interest
thereon, if any, shall be first deposited with the commissioner of motor
vehicles and there shall be filed with the commissioner of motor vehi-
cles an undertaking, issued by a surety company authorized to transact
business in this state and approved by the superintendent of insurance
of this state as to solvency and responsibility, in such amount as a
justice of the supreme court shall approve, to the effect that if such
proceeding be dismissed or the tax confirmed, the taxpayer will pay all
costs and charges which may accrue in the prosecution of the proceeding;
or (b) at the option of the taxpayer such undertaking filed with the
commissioner of motor vehicles may be in a sum sufficient to cover the
taxes, penalties and interest thereon stated in such determination or
decision, plus the costs and charges which may accrue against it in the
prosecution of the proceeding, in which event the taxpayer shall not be
required to deposit such taxes, penalties and interest as a condition
precedent to the application.
§ 11-2207 Refunds for certain unused registrations. Whenever any fee
or portion of a fee paid for the registration of a motor vehicle under
the provisions of the vehicle and traffic law is refunded pursuant to
the provisions of subdivision one of section four hundred twenty-eight
of the vehicle and traffic law, the amount of any tax paid pursuant to
this chapter upon such registration shall also be refunded by the
commissioner.
§ 11-2208 Refunds. a. In the manner provided in this section the
commissioner of motor vehicles shall refund or credit, without interest,
any tax, penalty or interest erroneously, illegally or unconstitu-
A. 10030 1069
tionally collected or paid if application for such refund shall be made
within one year from the payment thereof to the commissioner of motor
vehicles or to the commissioner of finance if designated as his or her
agent. Whenever a refund is made or denied, the reasons therefor shall
be stated in writing by the commissioner of motor vehicles or by the
commissioner of finance, as the case may be, who in lieu of any refund,
may allow credit therefor on payments due from the applicant.
b. (1) If the commissioner of motor vehicles has not designated the
commissioner of finance as his or her agent, application for a refund or
credit made as provided under this section shall be deemed an applica-
tion for a revision of any tax, penalty or interest complained of and
the commissioner of motor vehicles shall hold a hearing and receive
evidence with respect thereto. After such hearing, the commissioner of
motor vehicles shall give notice of the determination of such applica-
tion to the applicant who shall be entitled to review such determination
by a proceeding pursuant to article seventy-eight of the civil practice
law and rules, provided such proceeding is instituted within four months
after the giving of notice of such determination, and provided that a
final determination of tax due was not previously made. Such a proceed-
ing shall not be instituted unless an undertaking is filed with the
commissioner of motor vehicles in such amount and with such sureties as
a justice of the supreme court shall approve, to the effect that if such
proceeding be dismissed or the tax confirmed, the petitioner will pay
all costs and charges which may accrue in the prosecution of such
proceeding.
(2) If the commissioner of motor vehicles has designated the commis-
sioner of finance as his or her agent, a determination of the commis-
sioner of finance denying a refund or credit pursuant to subdivision a
of this section shall be final and irrevocable unless the applicant for
such refund or credit, within ninety days from the mailing of notice of
such determination, or, if the commissioner of finance has established a
conciliation procedure pursuant to section 11-124 of the code of the
preceding municipality and the applicant has requested a conciliation
conference in accordance therewith, within ninety days from the mailing
of a conciliation decision or the date of the commissioner's confirma-
tion of the discontinuance of the conciliation proceeding, both (1)
serves a petition upon the commissioner of finance and (2) files a peti-
tion with the tax appeals tribunal for a hearing. Such petition for a
refund or credit, made as provided under this section, shall be deemed
an application for a revision of any tax, penalty or interest complained
of. Such hearing and any appeal to the tax appeals tribunal sitting en
banc from the decision rendered in such hearing shall be conducted in
the manner and subject to the requirements prescribed by the tax appeals
tribunal pursuant to sections one hundred sixty-eight through one
hundred seventy-two of the charter of the preceding municipality as it
existed January first, nineteen hundred ninety-four. After such hearing,
the tax appeals tribunal shall give notice of its decision to the appli-
cant and to the commissioner of finance. The applicant shall be entitled
to institute a proceeding pursuant to article seventy-eight of the civil
practice law and rules to review a decision of the tax appeals tribunal
sitting en banc if application to the supreme court be made therefor
within four months after the giving of notice of such decision, and
provided, in the case of an application by a taxpayer, that a final
determination of tax due was not previously made. Such a proceeding
shall not be instituted by a taxpayer unless an undertaking shall first
be filed with the commissioner of motor vehicles, in such amount and
A. 10030 1070
with such sureties as a justice of the supreme court shall approve, to
the effect that if such proceeding be dismissed or the tax confirmed,
the taxpayer will pay all costs and charges which may accrue in the
prosecution of such proceeding.
c. A person shall not be entitled to a revision, refund or credit
under this section of a tax, interest or penalty which has been deter-
mined to be due pursuant to the provisions of section 11-2206 of this
chapter where he or she has had a hearing or an opportunity for a hear-
ing, as provided in such section, or has failed to avail himself or
herself of the remedies provided in such section. No refund or credit
shall be made of a tax, interest or penalty paid after a determination
made pursuant to section 11-2206 of this chapter, unless it be found
that such determination was erroneous, illegal or unconstitutional or
otherwise improper after a hearing, or on his or her own motion, by the
commissioner of motor vehicles or after a hearing by the tax appeals
tribunal, or on his or her own motion by the commissioner of finance, as
the case may be, or in a proceeding under article seventy-eight of the
civil practice law and rules, pursuant to the provisions of said
section, in which event refund or credit without interest shall be made
of the tax, interest or penalty found to have been overpaid.
§ 11-2209 Reserves. In cases where a taxpayer has applied for a
refund and has instituted a proceeding under article seventy-eight of
the civil practice law and rules to review a determination adverse to
such taxpayer on his or her application for refund, the commissioner of
motor vehicles shall set up appropriate reserves to meet any decision
adverse to the city.
§ 11-2210 Remedies exclusive. The remedies provided by sections
11-2206 and 11-2208 of this chapter shall be the exclusive remedies
available to any person for the review of tax liability imposed by this
chapter; and no determination or proposed determination of tax or deter-
mination on any application for refund by the commissioner of motor
vehicles or by the commissioner of finance, nor any decision by the tax
appeals tribunal or any of its administrative law judges, shall be
enjoined or reviewed by an action for declaratory judgment, an action
for money had and received or by any action or proceeding other than, in
the case of a final determination by the commissioner of motor vehicles
or a decision by the tax appeals tribunal sitting en banc, a proceeding
in the nature of a certiorari proceeding under article seventy-eight of
the civil practice law and rules; provided, however, that a taxpayer may
proceed by declaratory judgment if he or she institutes suit within
thirty days after a deficiency assessment is made and pays the amount of
the deficiency assessment to the commissioner of motor vehicles prior to
the institution of such suit and posts a bond for costs as provided in
section 11-2206 of this chapter.
§ 11-2211 Proceedings to recover tax. a. Whenever any person shall
fail to pay any tax, penalty or interest imposed by this chapter, the
corporation counsel, upon the request of the commissioner of motor vehi-
cles or of the commissioner of finance if designated as his or her
agent, shall bring or cause to be brought an action to enforce the
payment of the same on behalf of the city of Staten Island in any court
of the state of New York or of any other state of the United States.
However, if in his or her discretion the commissioner of motor vehicles,
or the commissioner of finance if designated as his or her agent,
believes that any such person subject to the provisions of this chapter
is about to cease business, leave the state or remove or dissipate the
assets out of which the tax or penalty might be satisfied, and that any
A. 10030 1071
such tax or penalty will not be paid when due, he or she may declare
such tax or penalty to be immediately due and payable and may issue a
warrant immediately.
b. As an additional or alternate remedy, the commissioner of motor
vehicles, or the commissioner of finance if designated as his or her
agent, may issue a warrant, directed to the city sheriff commanding him
or her to levy upon and sell the real and personal property of the
person liable for the tax which may be found within the city, for the
payment of the amount thereof, with any penalty and interest, and the
cost of executing the warrant, and to return such warrant to the person
who issued it and to pay to him or her the money collected by virtue
thereof within sixty days after the receipt of such warrant. The city
sheriff shall within five days after the receipt of the warrant file
with the county clerk a copy thereof, and thereupon such clerk shall
enter in the judgment docket the name of the person mentioned in the
warrant and the amount of the tax, penalty and interest for which the
warrant is issued and the date when such copy is filed. Thereupon the
amount of such warrant so docketed shall become a lien upon the title to
and the interest in real and personal property of the person against
whom the warrant is issued. The city sheriff shall then proceed upon
the warrant in the same manner, and with like effect, as that provided
by law in respect to executions issued against property upon judgments
of a court of record and for services in executing the warrant such
sheriff shall be entitled to the same fees, which he or she may collect
in the same manner. In the discretion of the commissioner of motor
vehicles, or of the commissioner of finance if designated as his or her
agent, a warrant of like terms, force and effect may be issued and
directed to an officer or employee of the department of finance of the
city, and in the execution thereof such officer or employee shall have
all the powers conferred by law upon sheriffs, but shall be entitled to
no fee or compensation in excess of the actual expenses paid in the
performance of such duty. If a warrant is returned not satisfied in
full, the commissioner of motor vehicles or the commissioner of finance,
as the case may be, may from time to time issue new warrants and shall
also have the same remedies to enforce the amount due thereunder as if
he or she had recovered judgment therefor and execution thereon had been
returned unsatisfied.
c. The commissioner of finance, if he or she finds that the interests
of the city will not thereby be jeopardized, and upon such conditions as
the commissioner of finance may require, may release any property from
the lien of any warrant or vacate such warrant for unpaid taxes, addi-
tions to tax, penalties and interest filed pursuant to subdivision b of
this section, and such release or vacating of the warrant may be
recorded in the office of any recording officer in which such warrant
has been filed. The clerk shall thereupon cancel and discharge as of the
original date of docketing the vacated warrant.
§ 11-2212 General powers of the commissioner of motor vehicles. In
addition to the powers granted to the commissioner of motor vehicles in
this chapter, he or she is hereby authorized and empowered:
1. To make, adopt and amend rules and regulations appropriate to the
carrying out of this chapter and the purposes thereof;
2. For cause shown, to remit penalties; and to compromise disputed
claims in connection with the taxes imposed under this chapter;
3. To request information concerning motor vehicles and persons
subject to the provisions of this chapter from the department of motor
vehicles of any other state or the treasury department of the United
A. 10030 1072
States, or any city or county of the state of New York; and to afford
such information to such other state, treasury department, city or coun-
ty, any provision of this chapter to the contrary notwithstanding;
4. To delegate his or her functions under this section to a deputy
commissioner in the department of motor vehicles or any employee or
employees of his or her department or to any county clerk or other offi-
cer who acts as the agent of such commissioner in the registration of
motor vehicles;
5. To prescribe methods for determining the tax;
6. To require all persons owning motor vehicles subject to tax to
keep such records as he or she may prescribe and to furnish such infor-
mation upon his or her request;
7. To request the police department of the city to assist in the
enforcement of the provisions of this chapter.
§ 11-2213 Administration of oaths and compelling testimony. a. The
commissioner of motor vehicles or his or her employees or agents duly
designated and authorized by such commissioner, and the tax appeals
tribunal, shall have power to administer oaths and take affidavits in
relation to any matter or proceeding in the exercise of the powers and
duties under this chapter. The commissioner of motor vehicles, or the
commissioner of finance if designated as his or her agent or the tax
appeals tribunal, shall have the power to subpoena and require the
attendance of witnesses and the production of books, papers and docu-
ments to secure information pertinent to the performance of the duties
of the commissioner of motor vehicles, the commissioner of finance or
the tax appeals tribunal pursuant to this chapter and of the enforcement
of this chapter and to examine them in relation thereto, and to issue
commissions for the examination of witnesses who are out of the state or
unable to attend before him or her or the tax appeals tribunal or
excused from attendance.
b. A justice of the supreme court either in court or at chambers shall
have power summarily to enforce by proper proceedings the attendance and
testimony of witnesses and production and examination of books, papers
and documents called for by the subpoena of the commissioner of motor
vehicles, or, if the commissioner of finance is designated as his or her
agent under this chapter, of the commissioner of finance and the tax
appeals tribunal.
c. Cross-reference; criminal penalties. For failure to obey subpoenas
or for testifying falsely, see section 11-4007 of this title; for
supplying false or fraudulent information, see section 11-4009 of this
title.
d. The officers who serve the summons or subpoena of the commissioner
of motor vehicles, or the commissioner of finance if designated as his
or her agent, or the tax appeals tribunal if the commissioner of finance
is designated as the agent of the commissioner of motor vehicles, and
witnesses attending in response thereto shall be entitled to the same
fees as are allowed to officers and witnesses in civil cases in courts
of record, except as otherwise provided in this section. Such officers
shall be the city sheriff and his or her duly appointed deputies, or any
officers or employees of the department of motor vehicles designated by
the commissioner of motor vehicles to serve such process or any officers
or employees of the department of finance of the city designated by the
commissioner of finance to serve such process or any officers or employ-
ees of the tax appeals tribunal designated to serve such process.
§ 11-2214 Penalties and interest. a. Any person failing to file a
return or to pay any tax or any portion thereof within the time required
A. 10030 1073
by this chapter shall be subject to a penalty of five times the amount
of the tax due, plus interest of five percent of such tax for each month
of delay or fraction thereof, but the commissioner of motor vehicles, or
the commissioner of finance if designated as his or her agent, if satis-
fied that the delay was excusable, may remit all or any part of such
penalty, but not interest at the rate of six percent per year. Penal-
ties and interest shall be paid and disposed of in the same manner as
other revenues under this chapter. Unpaid penalties and interest may be
enforced in the same manner as the tax imposed by this chapter.
b. The certificate of the commissioner of motor vehicles or of the
commissioner of finance if designated as his or her agent to the effect
that a tax has not been paid, or that a return required by this chapter
has not been filed, or that information has not been supplied pursuant
to the provisions of this chapter shall be presumptive evidence thereof.
c. Cross-reference: For criminal penalties, see chapter forty of this
title.
§ 11-2215 Returns to be secret. a. Except in accordance with proper
judicial order or as otherwise provided by law, it shall be unlawful for
the commissioner of motor vehicles, any officer or employee of the
department of motor vehicles, the commissioner of finance, any officer
or employee of the department of finance, the tax appeals tribunal, any
commissioner or employee of such tribunal, any agent of the commissioner
of motor vehicles, or any person who, pursuant to this section, is
permitted to inspect any return or to whom a copy, an abstract or
portion of any return is furnished, or to whom any information contained
in any return is furnished to divulge or make known in any manner any
information contained in or relating to any return provided for by this
chapter. The officers charged with the custody of such returns shall
not be required to produce any of them or evidence of anything contained
in them in any action or proceeding in any court, except on behalf of
the commissioner of motor vehicles or the commissioner of finance in an
action or proceeding under the provisions of this chapter, or on behalf
of any party to an action or proceeding under the provisions of this
chapter when the returns or facts shown thereby are directly involved in
such action or proceeding, in either of which events the court may
require the production of, and may admit in evidence, so much of said
returns or of the facts shown thereby, as are pertinent to the action or
proceeding and no more. The commissioner of motor vehicles may, never-
theless, publish a copy or a summary of any determination or decision
rendered after a formal hearing held pursuant to section 11-2206 or
11-2208 of this chapter. Nothing under this section shall be construed
to prohibit the delivery to a person or his or her duly authorized
representative of a certified copy of any return filed by him or her
pursuant to this chapter, or of the receipt, document or other form
issued pursuant to section 11-2204 of this chapter, or a duplicate copy
thereof; nor to prohibit the delivery of such a certified copy of such
return or of any information contained in or relating thereto, to the
United States of America or any department thereof, the state of New
York or any department thereof, the city of Staten Island or any depart-
ment thereof provided the same is required for official business; nor to
prohibit the inspection for official business of such returns by the
corporation counsel or other legal representatives of the city or by the
district attorney of Richmond county; nor to prohibit the publication of
statistics so classified as to prevent the identification of particular
returns or items thereof.
A. 10030 1074
b. (1) Any officer or employee of the state of New York or the city
who willfully violates the provisions of subdivision a of this section
shall be dismissed from office and be incapable of holding any public
office in the state of New York or this city for a period of five years
thereafter.
(2) Cross-reference: For criminal penalties, see chapter forty of this
title.
c. This section shall be deemed a state statute for purposes of para-
graph (a) of subdivision two of section eighty-seven of the public offi-
cers law.
d. Notwithstanding anything in subdivision a of this section to the
contrary, if a taxpayer has petitioned the tax appeals tribunal for
administrative review as provided in section one hundred seventy of the
charter of the preceding municipality as it existed January first, nine-
teen hundred ninety-four, the commissioner of finance shall be author-
ized to present to the tax appeals tribunal any report or return of such
taxpayer, or any information contained therein or relating thereto,
which may be material or relevant to the proceeding before the tax
appeals tribunal. The tax appeals tribunal shall be authorized to
publish a copy or a summary of any decision rendered pursuant to section
one hundred seventy-one of the charter of the preceding municipality as
it existed January first, nineteen hundred ninety-four.
§ 11-2216 Notices and limitations of time. a. Any notice authorized or
required under the provisions of this chapter may be given by mailing
the same to the person for whom it is intended in a postpaid envelope
addressed to such person at the address given in the last return filed
by him or her pursuant to the provisions of this chapter, in any appli-
cation made by him or her, or in any application for registration made
by him or her pursuant to section four hundred one of the vehicle and
traffic law or, if no return has been filed or application made, then to
such address as may be obtainable. The mailing of such notice shall be
presumptive evidence of the receipt of the same by the person to whom
addressed. Any period of time which is determined according to the
provisions of this chapter by the giving of notice shall commence to run
from the date of mailing of such notice.
b. The provisions of the civil practice law and rules or any other law
relative to limitations of time for the enforcement of a civil remedy
shall not apply to any proceeding or action taken by the commissioner of
motor vehicles, or the commissioner of finance if designated as his or
her agent, to levy, appraise, assess, determine or enforce the
collection of any tax or penalty provided by this chapter. However,
except in the case of a wilfully false or fraudulent return with intent
to evade the tax, no assessment of additional tax shall be made after
the expiration of more than three years from the date of the filing of a
return; provided, however, that where no return has been filed as
provided by law the tax may be assessed at any time.
c. Where, before the expiration of the period prescribed under this
section for the assessment of an additional tax, a taxpayer has
consented in writing that such period be extended, the amount of such
additional tax may be determined at any time within such extended peri-
od. The period so extended may be further extended by subsequent
consents in writing made before the expiration of the extended period.
d. If any return, claim, statement, notice, application, or other
document required to be filed, or any payment required to be made, with-
in a prescribed period or on or before a prescribed date under authority
of any provision of this title is, after such period or such date,
A. 10030 1075
delivered by United States mail to the commissioner of motor vehicles,
commissioner of finance, the tax appeals tribunal, bureau, office, offi-
cer or person with which or with whom such document is required to be
filed, or to which or to whom such payment is required to be made, the
date of the United States postmark stamped on the envelope shall be
deemed to be the date of delivery. This subdivision shall apply only if
the postmark date falls within the prescribed period or on or before the
prescribed date for the filing of such document, or for making the
payment, including any extension granted for such filing or payment, and
only if such document or payment was deposited in the mail, postage
prepaid, properly addressed to the commissioner of motor vehicles,
commissioner of finance, the tax appeals tribunal, bureau, office, offi-
cer or person with which or with whom the document is required to be
filed or to which or to whom such payment is required to be made. If any
document is sent by United States registered mail, such registration
shall be prima facie evidence that such document was delivered to the
commissioner of motor vehicles, commissioner of finance, the tax appeals
tribunal, bureau, office, officer or person to which or to whom
addressed, and the date of registration shall be deemed the postmark
date. The commissioner of motor vehicles is authorized to provide by
regulation the extent to which, such provisions with respect to prima
facie evidence of delivery and the postmark date, shall apply to certi-
fied mail. This subdivision shall apply in the case of postmarks not
made by the United States Postal Service only if and to the extent
provided by regulation of the commissioner of motor vehicles.
e. When the last day prescribed under authority of this title, includ-
ing any extension of time, for performing any act falls on a Saturday,
Sunday or legal holiday in the state of New York, the performance of
such act shall be considered timely if it is performed on the next
succeeding day which is not a Saturday, Sunday or legal holiday.
§ 11-2217 Commissioner of finance as agent. The commissioner of motor
vehicles is hereby authorized to designate the commissioner of finance
as his or her agent to exercise any or all of his or her functions and
powers specified or provided for in subdivision (d) of section 11-2205
and in sections 11-2206, 11-2208, 11-2211, 11-2213, 11-2214 and 11-2216
of this chapter. Where the commissioner of finance has been so desig-
nated as agent, the commissioner of finance, in addition to the powers
elsewhere granted to him or her in this chapter, is hereby authorized
and empowered:
1. To delegate such functions and powers to a commissioner or deputy
commissioner in the department of finance or to any employee or employ-
ees of the department of finance;
2. For cause shown, to remit penalties and to compromise disputed
claims in connection with the taxes hereby imposed;
3. To request information concerning motor vehicles and persons
subject to the provisions of this chapter from the department of motor
vehicles of any other state or the treasury department of the United
States, or any city or county of the state of New York; and to afford
such information to such other state, treasury department, city or coun-
ty, any provision of this chapter to the contrary notwithstanding;
4. To request the police department of the city to assist in the
enforcement of the provisions of this chapter.
§ 11-2218 Agreement between commissioner of finance and commissioner
of motor vehicles. The commissioner of finance is hereby authorized and
empowered to enter into an agreement with the commissioner of motor
vehicles to govern the administration and collection of the taxes
A. 10030 1076
imposed by this chapter, which agreement shall provide for the exclusive
method of collection of such taxes, custody and remittal of the proceeds
of such tax; for the payment by the city of the reasonable expenses
incurred by the department of motor vehicles in collecting and adminis-
tering such tax; and for the audit, upon request of the commissioner of
finance or his or her delegate, of the accuracy of the payments,
distributions and remittances to the commissioner of finance pursuant to
the provisions of this chapter, to be conducted at a time agreed upon by
the state comptroller and to be allowed not more frequently than once in
each calendar year. Such agreement shall have the force and effect of a
rule or regulation of the commissioner of motor vehicles, and shall be
filed and published in accordance with any statutory requirements relat-
ing thereto.
§ 11-2219 Notification to corporation counsel. The commissioner of
motor vehicles shall promptly notify the corporation counsel of the city
of any litigation instituted against him or her which challenges the
constitutionality or validity of any provision of this chapter, or of
the enabling act pursuant to which it was adopted, or which attempts to
limit or question the applicability of either such law, and such notifi-
cation shall include a copy of the papers served upon him or her.
§ 11-2220 Construction and enforcement. This chapter shall be
construed and enforced in conformity with subdivisions (g) and (h) of
section twelve hundred one of the tax law, pursuant to which it is
enacted.
§ 11-2221 Disposition of revenues. All revenues resulting from the
imposition of the tax under this chapter shall be paid into the treasury
of the city and shall be credited to and deposited in the general fund
of the city, but no part of such revenues may be expended unless appro-
priated in the annual budget of the city.
CHAPTER 23-A
ENHANCED 911 TELEPHONE SURCHARGE
§ 11-2321 Short title. This chapter shall be known and may be cited as
the "enhanced 911 telephone surcharge act."
§ 11-2322 Definitions. When used in this chapter the following terms
shall mean:
(a) "E911 system" means an enhanced emergency telephone service which
automatically connects a person dialing the digits 9-1-1 to the answer-
ing point established within the city of Staten Island police depart-
ment, and which shall include, but not be limited to, selective routing,
automatic number identification and automatic location identification.
(b) "Lifeline" means a discounted or low-priced telephone service
available to eligible low-income residential customers.
(c) "Access line" means a communications circuit that connects a
customer location to a facility housing the switching system and related
equipment that provides telephone service.
(d) "911 service area" means the area within the geographic boundaries
of the city of Staten Island.
(e) "Municipality" means any New York city agency, or any public bene-
fit corporation, local development corporation or other governmental
entity the majority of whose members or governing body is appointed by a
city official.
(f) "Public safety agency" means a public safety agency as defined in
subdivision five of section three hundred one of the county law.
A. 10030 1077
(g) "Service supplier" means a service supplier as defined in subdivi-
sion seven of section three hundred one of the county law that provides
service within the 911 service area.
(h) "System costs" means the costs associated with obtaining and main-
taining the telecommunication equipment, all operations and maintenance
costs and the telephone services costs necessary to establish and
provide an E911 system.
(i) "Voice over internet protocol service" or "VOIP service" shall
mean any service that (1) enables real-time, two-way voice communi-
cations; (2) requires a broadband connection from the user's location;
(3) requires internet protocol compatible customer premises equipment
(CPE); and (4) permits users generally to receive calls that originate
on the public switched telephone network and to terminate calls to the
public switched telephone network.
§ 11-2323 Establishment of surcharge for E911 system. (a) In accord-
ance with the provisions of article six of the county law, as amended,
there is hereby established a surcharge of one dollar per telephone
access line, or equivalent, per month on the customers of every service
supplier within the city of New York.
(b) The surcharge imposed by subdivision (a) of this section shall be
used to pay for the costs associated with obtaining, operating and main-
taining the telecommunication equipment and telephone services needed to
provide an enhanced 911 emergency telephone system to serve the city of
New York.
(c) All service suppliers that provide local access service within the
911 service area in the city of New York shall begin to add the monthly
surcharge of one dollar per telephone access line per month as provided
in subdivision (a) of this section to all service bills no later than
the forty-fifth day after the effective date of the local law that
increased such surcharge to one dollar per telephone access line per
month. Notwithstanding the provisions of this subdivision, all provid-
ers of voice over internet protocol service that provide such service
within the 911 service area shall begin to add the monthly surcharge of
one dollar per telephone access line, or equivalent, per month as
provided in subdivision (a) of this section to all service bills no
later than September fifth, two thousand ten.
§ 11-2324 Application; limitations; exemptions. (a) The surcharge
established pursuant to the provisions of section 11-2323 of this chap-
ter shall be imposed on a per access line basis on all current bills
rendered for local exchange access service within the 911 service area.
(b) No such surcharge shall be imposed upon:
(1) more than seventy-five exchange access lines per customer per
location;
(2) any lifeline customers of a local telephone service supplier; or
(3) a public safety agency; or
(4) any municipality, as defined in subdivision (e) of section 11-2322
of this chapter.
§ 11-2325 Collection of surcharge. (a) The appropriate service suppli-
er or suppliers serving the city of Staten Island 911 service area shall
act as collection agents for the city and shall remit the funds
collected as the surcharge to the commissioner of finance each month.
Such funds shall be remitted no later than thirty days after the last
business day of such period.
(b) The service supplier shall be entitled to retain as an administra-
tive fee an amount equal to two per cent of its collections of the
surcharge.
A. 10030 1078
(c) The surcharge required to be collected by the service supplier
shall be added to and stated separately in its billings to the customer.
(d) The service supplier shall annually provide to the commissioner of
finance an accounting of the surcharge amounts billed and collected.
§ 11-2326 Liability for surcharge. (a) Each service supplier who is
subject to the provisions of this chapter shall be liable to the city
for the surcharge until it has been paid to the city, except that
payment to a service supplier is sufficient to relieve the customer from
further liability for such surcharge.
(b) The service supplier customer shall have no obligation to take any
legal action to enforce the collection of any surcharge. However, when-
ever the service supplier remits the funds collected as the surcharge to
the city, it shall also provide the city with the name and address of
any customer refusing or failing to pay the surcharge imposed by this
chapter and shall state the amount of such surcharge remaining unpaid.
§ 11-2327 System revenues; adjustment of surcharge. (a) All surcharge
monies remitted to the commissioner of finance by a service supplier and
all other monies dedicated to the payment of system costs from whatever
source derived or received by the city of Staten Island shall be
expended only upon authorization of the council, and only for payment of
system costs as permitted by this chapter. The finance commissioner and
the director of the office of management and budget shall separately
account for and keep adequate records of the amount and source of all
such revenues and of the amount and object or purpose of all expendi-
tures thereof.
(b) If at the end of any fiscal year the total amount of all such
revenues exceeds the amount necessary for payment of system costs in
such fiscal year, such excess shall be reserved and carried over for the
payment of system costs in the following fiscal year. However, if at the
end of any fiscal year in conformance with applicable law, such E911
reserved fund balance exceeds an amount equal to five per cent of that
necessary for the payment of system costs in such fiscal year, the coun-
cil shall by local law reduce the surcharge for the following fiscal
year to a level that more adequately reflects the system cost require-
ments of its E911 system. The council may also reestablish or increase
such surcharge, subject to the provisions of section three hundred three
of the county law, if the revenues generated by such surcharge and by
any other source are not adequate to pay for system costs.
CHAPTER 23-B
WIRELESS COMMUNICATIONS SERVICE SURCHARGE
§ 11-2341 Short title. This chapter shall be known and may be cited as
the "wireless communications service surcharge act."
§ 11-2342 Definitions. (a) "Wireless communications device" means any
equipment used to access a wireless communications service.
(b) "Wireless communications service" means all commercial mobile
services, as that term is defined in subdivision (d) of section three
hundred thirty-two of title forty-seven of the United States Code, as
amended from time to time, including, but not limited to, all broadband
personal communications services, wireless radio telephone services,
geographic area specialized and enhanced specialized mobile radio
services, and incumbent-wide area specialized mobile radio licensees,
which offer real time, two-way voice or data service that is intercon-
nected with the public switched telephone network or otherwise provides
access to emergency communications services.
(c) "Wireless communications service supplier" means any commercial
entity that operates a wireless communications service.
A. 10030 1079
(d) "Place of primary use" means the street address that is represen-
tative of where the customer's use of the wireless communications
service primarily occurs, which address must be either the residential
street address or the primary business street address of the customer;
and within the licensed service area of the wireless communications
service provider.
§ 11-2343 Establishment of surcharge for wireless communications
devices. (a) In accordance with the provisions of article six of the
county law, as amended, there is hereby established a surcharge of thir-
ty cents per month on wireless communications service in the city of New
York. The surcharge shall be imposed on each wireless communications
device and shall be reflected and made payable on bills rendered for
wireless communications service that is provided to a customer whose
place of primary use is within the city of New York.
(b) The surcharge imposed by subdivision (a) of this section shall be
used to pay for the costs associated with the design, construction,
operation, maintenance, and administration of public safety communi-
cations networks serving the city of New York.
(c) All wireless communications service suppliers that provide service
to customers whose place of primary use is within the city of New York
shall begin to add the monthly surcharge as provided in subdivision (a)
of this section to all service bills no later than the forty-fifth day
after the effective date of the local law that added this chapter.
(d) Notwithstanding any provision of law to the contrary, no surcharge
shall be imposed pursuant to this chapter on or after December first,
two thousand seventeen.
§ 11-2344 Collection of surcharge. (a) Each wireless communications
service supplier serving the city of New York shall act as collection
agent for the city of Staten Island and shall remit the funds collected
pursuant to the surcharge imposed under the provisions of this chapter
to the commissioner of finance each month. Such funds shall be remitted
no later than thirty days after the last business day of the month.
(b) Each wireless communications service supplier shall be entitled to
retain, as an administrative fee, an amount equal to two per cent of its
collections of the surcharge.
(c) The surcharge required to be collected by the wireless communi-
cations service supplier shall be added to and stated separately in its
billings to customers.
(d) Each wireless communications service supplier shall annually
provide to the city of Staten Island an accounting of the surcharge
amounts billed and collected.
§ 11-2345 Liability for surcharge. (a) Each wireless communications
service customer who is subject to the provisions of this chapter shall
be liable to the city of Staten Island for the surcharge until it has
been paid to the city except that payment to a wireless communications
service supplier is sufficient to relieve the customer from further
liability for such surcharge.
(b) No wireless communications service supplier shall have a legal
obligation to enforce the collection of any surcharge imposed under the
provisions of this chapter, provided, however, that whenever the wire-
less communications service supplier remits the funds collected to the
city of Staten Island, it shall also provide the city with the name and
address of any customer refusing or failing to pay the surcharge and
shall state the amount of such surcharge remaining unpaid.
§ 11-2346 Systems revenues; adjustment of surcharge. (a) All surcharge
monies remitted to the city of Staten Island by a wireless communi-
A. 10030 1080
cations service supplier shall be expended only upon authorization of
the council and only for payment of system costs or other costs associ-
ated with the design, construction, operation, maintenance, and adminis-
tration of public safety communications networks serving the city of
Staten Island. The finance commissioner and the director of the office
of management and budget shall separately account for and keep adequate
books and records of the amount and source of all such monies and of the
amount and object or purpose of all expenditures thereof.
(b) If, at the end of any fiscal year, the total amount of all such
monies exceeds the amount necessary for payment of the above mentioned
costs in such fiscal year, such excess shall be reserved and carried
over for the payment of those costs in the following fiscal year.
CHAPTER 23-C
WIRELESS COMMUNICATIONS SURCHARGE
§ 11-2351 Surcharge on wireless communications service. (a) There is
hereby imposed within the territorial limits of the city of Staten
Island, in accordance with the provisions of section one hundred eight-
y-six-g of the tax law, a surcharge on wireless communications service,
as such surcharge is described in paragraph (b) of subdivision two of
section one hundred eighty-six-g of the tax law.
(b) Such surcharge shall be imposed at the rate of thirty cents per
month on each wireless communications device in service during any part
of the month.
(c) A wireless communications service supplier shall begin to add such
surcharge to the billings of its customers on December first, two thou-
sand seventeen.
§ 11-2352 Surcharge on the retail sale of each prepaid wireless commu-
nications service. (a) There is hereby imposed within the territorial
limits of the city of Staten Island, in accordance with the provisions
of section one hundred eighty-six-g of the tax law, a surcharge on
prepaid wireless communications service, as such surcharge is described
in paragraph (c) of subdivision two of section one hundred eighty-six-g
of the tax law.
(b) Such surcharge shall be imposed at the rate of thirty cents per
retail sale.
(c) A prepaid wireless communications seller shall begin to collect
such surcharge from its customers on December first, two thousand seven-
teen.
CHAPTER 24
TAX ON RETAIL LICENSEES OF THE STATE LIQUOR AUTHORITY
§ 11-2401 Definitions. When used in this chapter the following terms
shall mean or include:
1. "Person." An individual, partnership, society, association, joint-
stock company, corporation, estate, receiver, lessee, trustee, assignee,
referee, or any other person acting in a fiduciary or representative
capacity, whether appointed by a court or otherwise, and any combination
of individuals.
2. "Retail licensee." Any person to whom a license has been issued
by the state liquor authority under the state alcoholic beverage control
law who sells at retail in the city, for on or off premises consumption,
any liquor, wine or beer for the sale of which such license is required.
A. 10030 1081
3. "Return." Any return required to be filed as provided under this
chapter.
4. "State." The state of New York.
5. "City." The city of Staten Island.
6. "Commissioner." The commissioner of finance of the city of Staten
Island.
7. "Tax year." June first of any calendar year through May thirty-
first of the following calendar year.
8. "Tax appeals tribunal." The tax appeals tribunal established by
section one hundred sixty-eight of the charter of the preceding munici-
pality as it existed January first, nineteen hundred ninety-four.
§ 11-2402 Imposition of tax. For the privilege of selling liquor,
wine or beer at retail, for on or off premises consumption, within the
city of Staten Island, there is hereby imposed and there shall be paid
annually for each tax year, commencing with the tax year beginning June
first, nineteen hundred eighty, a tax to be paid by each retail licensee
in an amount equal to twenty-five percent of the license fees payable
under the state alcoholic beverage control law by such retail licensee
for the license year in effect at the commencement of the tax year under
this chapter. A retail licensee who obtains a license subsequent to the
commencement of a tax year shall pay the tax based upon fees payable
under the state alcoholic beverage control law by such licensee for the
license year in effect at the time such license is issued. This tax
shall be in addition to any and all other taxes paid by such retail
licensee.
§ 11-2403 Exemptions. The tax imposed by this chapter shall not apply
to the following:
(a) The state of New York, or any of its agencies, instrumentalities,
public corporations, including a public corporation created pursuant to
agreement or compact with another state or Canada, or political subdivi-
sions;
(b) The United States of America, and any of its agencies and instru-
mentalities insofar as it is immune from taxation;
(c) The United Nations or other international organizations of which
the United States of America is a member; and
(d) Any corporation, or association, or trust, or community chest,
fund or foundation, organized and operated exclusively for religious,
charitable, or educational purposes, or for the prevention of cruelty to
children or animals, and no part of the net earnings of which inures to
the benefit of any private shareholder or individual, and no substantial
part of the activities of which is carrying on propaganda, or otherwise
attempting to influence legislation; provided, however, that nothing in
this paragraph shall include an organization operated for the primary
purpose of carrying on a trade or business for profit, whether or not
all of its profits are payable to one or more organizations described in
this subdivision.
§ 11-2404 Records to be kept. Every retail licensee shall keep such
records of its business and in such form as the commissioner may by
regulation require. Such records shall be offered for inspection and
examination at any time upon demand by the commissioner or his or her
duly authorized agent or employee and shall be preserved for a period of
three years, except that the commissioner may consent to their
destruction within that period or may require that they be kept longer.
§ 11-2405 Returns. a. On or before the twenty-fifth day of June in
each tax year, every person subject to tax under this chapter shall file
a return with the commissioner on a form prescribed by the commissioner.
A. 10030 1082
A retail licensee who obtains a license subsequent to the commencement
of a tax year shall file a return for such tax year on or before the
twenty-fifth day of the month following the month in which such license
was obtained.
b. The return shall state the amount of license fees paid to the
state under the alcoholic beverage control law and the date when a
license under such law was issued to the retail licensee and shall
contain any other information which the commissioner may deem necessary
for the proper administration of this chapter. The commissioner may
require amended returns to be filed within twenty days after notice and
to contain the information specified in the notice.
c. If a return required by this chapter is not filed or if a return
when filed is incorrect or insufficient on its face, the commissioner
shall take the necessary steps to enforce the filing of such a return or
of a corrected return.
d. The return otherwise required to be filed on or before June twen-
ty-fifth, nineteen hundred eighty under the provisions of subdivision a
of this section, shall be made and filed on or before August twenty-
fifth, nineteen hundred eighty.
§ 11-2406 Payment of tax. At the time of filing a return each person
shall pay to the commissioner the tax imposed under this chapter. Such
tax shall be due and payable on the last day on which such return is
required to be filed, regardless of whether a return is filed or whether
the return which is filed correctly indicates the amount of tax due.
§ 11-2407 Determination of tax. If a return required by this chapter
is not filed, or if a return when filed is incorrect or insufficient,
the commissioner shall determine the amount of tax due from such infor-
mation as may be obtainable and, if necessary, may estimate the tax on
the basis of external indices. Notice of such determination shall be
given to the person liable for the payment of the tax. Such determi-
nation shall finally and irrevocably fix the tax unless the person
against whom it is assessed, within ninety days after the giving of
notice of such determination, or, if the commissioner of finance has
established a conciliation procedure pursuant to section 11-124 of the
code of the preceding municipality and the taxpayer has requested a
conciliation conference in accordance therewith, within ninety days from
the mailing of a conciliation decision or the date of the commissioner's
confirmation of the discontinuance of the conciliation proceeding, both
(1) serves a petition upon the commissioner of finance and (2) files a
petition with the tax appeals tribunal for a hearing, or unless the
commissioner of his or her own motion shall redetermine the same. Such
hearing and any appeal to the tax appeals tribunal sitting en banc from
the decision rendered in such hearing shall be conducted in the manner
and subject to the requirements prescribed by the tax appeals tribunal
pursuant to sections one hundred sixty-eight through one hundred seven-
ty-two of the charter of the preceding municipality as it existed Janu-
ary first, nineteen hundred ninety-four. After such hearing the tax
appeals tribunal shall give notice of its decision to the person against
whom the tax is assessed and to the commissioner of finance. A decision
of the tax appeals tribunal sitting en banc shall be reviewable for
error, illegality or unconstitutionality or any other reason whatsoever
by a proceeding under article seventy-eight of the civil practice law
and rules if application therefor is made to the supreme court by the
person against whom the tax was assessed within four months after the
giving of the notice of such tax appeals tribunal decision. A proceed-
ing under article seventy-eight of the civil practice law and rules
A. 10030 1083
shall not be instituted by a taxpayer unless: (a) the amount of any tax
sought to be reviewed, with penalties and interest thereon, if any,
shall be first deposited with the commissioner and there shall be filed
with the commissioner an undertaking issued by a surety company author-
ized to transact business in this state and approved by the superinten-
dent of insurance of this state as to solvency and responsibility, in
such amount as a justice of the supreme court shall approve, to the
effect that if such proceeding be dismissed or the tax confirmed, the
taxpayer will pay all costs and charges which may accrue in the prose-
cution of the proceedings or (b) at the option of the taxpayer, such
undertaking may be in a sum sufficient to cover the taxes, interest and
penalties stated in such decision, plus the costs and charges which may
accrue against it in the prosecution of the proceeding, in which event
the taxpayer shall not be required to pay such taxes, interest or penal-
ties as a condition precedent to the application.
§ 11-2408 Refunds. a. In the manner provided in this section, the
commissioner shall refund or credit, without interest, any tax, penalty
or interest erroneously, illegally or unconstitutionally collected or
paid, if written application to the commissioner for such refund shall
be made within one year from the payment thereof. Whenever a refund or
credit is made or denied, the commissioner shall state his or her reason
therefor and give notice thereof to the taxpayer in writing. The commis-
sioner may, in lieu of any refund required to be made, allow credit
therefor on payments due from the applicant.
b. Any determination of the commissioner of finance denying a refund
or credit pursuant to subdivision a of this section shall be final and
irrevocable unless the applicant for such refund or credit, within nine-
ty days from the mailing of notice of such determination, or, if the
commissioner of finance has established a conciliation procedure pursu-
ant to section 11-124 of the code of the preceding municipality and the
applicant has requested a conciliation conference in accordance there-
with, within ninety days from the mailing of a conciliation decision or
the date of the commissioner's confirmation of the discontinuance of the
conciliation proceeding, both (1) serves a petition upon the commission-
er of finance and (2) files a petition with the tax appeals tribunal for
a hearing. Such petition for a refund or credit made as provided in this
section shall be deemed an application for a revision of any tax, penal-
ty or interest complained of. Such hearing and any appeal to the tribu-
nal sitting en banc from the decision rendered in such hearing shall be
conducted in the manner and subject to the requirements prescribed by
the tax appeals tribunal pursuant to sections one hundred sixty-eight
through one hundred seventy-two of the charter of the preceding munici-
pality as it existed January first, nineteen hundred ninety-four. After
such hearing, the tax appeals tribunal shall give notice of its decision
to the applicant and to the commissioner of finance. The applicant shall
be entitled to institute a proceeding pursuant to article seventy-eight
of the civil practice law and rules to review a decision of the tax
appeals tribunal sitting en banc if application to the supreme court be
made therefor within four months after the giving of notice of such
decision, and provided, in the case of an application by a taxpayer,
that a final determination of tax due was not previously made. Such a
proceeding shall not be instituted by a taxpayer unless an undertaking
shall first be filed with the commissioner, in such amount and with such
sureties as a justice of the supreme court shall approve, to the effect
that if such proceeding be dismissed or the tax confirmed, the taxpayer
A. 10030 1084
will pay all costs and charges which may accrue in the prosecution of
the proceeding.
c. A person shall not be entitled to a revision, refund or credit
under this section, of a tax, interest or penalty which had been deter-
mined to be due pursuant to the provisions of section 11-2407 of this
chapter where such person has had a hearing or an opportunity for a
hearing, as provided in such section or has failed to avail himself or
herself of the remedies as provided in such section. No refund or cred-
it shall be made of a tax, interest or penalty paid after a determi-
nation by the commissioner made pursuant to section 11-2407 of this
chapter unless it be found that such determination was erroneous, ille-
gal or unconstitutional or otherwise improper, by the tax appeals tribu-
nal after a hearing or of the commissioner's own motion, or, if such tax
appeals tribunal affirms in whole or in part the determination of the
commissioner of finance, in a proceeding under article seventy-eight of
the civil practice law and rules, pursuant to the provisions of said
section in which event refund or credit without interest shall be made
of the tax, interest or penalty found to have been overpaid.
§ 11-2409 Remedies exclusive. The remedies provided by this chapter
shall be the exclusive remedies available to any person for the review
of tax liability imposed by this chapter; and no determination or
proposed determination of tax or determination on any application for
refund by the commissioner of finance, nor any decision by the tax
appeals tribunal or any of its administrative law judges, shall be
enjoined or reviewed by an action for declaratory judgment, an action
for money had and received or by any action or proceeding other than, in
the case of a decision by the tax appeals tribunal sitting en banc, a
proceeding under article seventy-eight of the civil practice law and
rules; provided, however, that a taxpayer may proceed by declaratory
judgment if such taxpayer institutes suit within thirty days after a
deficiency assessment is made and pays the amount of the deficiency
assessment to the commissioner prior to the institution of such suit and
posts a bond for costs as provided in section 11-2407 of this chapter.
§ 11-2410 Reserves. In cases where the taxpayer has applied for a
refund and has instituted a proceeding under article seventy-eight of
the civil practice law and rules to review a determination adverse to
such taxpayer on his or her application for refund, the city comptroller
shall set up appropriate reserves to meet any decision adverse to the
city.
§ 11-2411 Proceedings to recover tax. a. Whenever any person shall
fail to pay any tax or penalty or interest imposed by this chapter, the
corporation counsel shall, upon the request of the commissioner, bring
or cause to be brought an action to enforce payment of the same against
the person liable for the same on behalf of the city of Staten Island in
any court of the state of New York or of any other state or of the
United States. If, however, the commissioner in his or her discretion
believes that a taxpayer subject to the provisions of this chapter is
about to cease business, leave the state or remove or dissipate the
assets out of which tax or penalties or interest might be satisfied and
that any such tax or penalty or interest will not be paid when due, he
or she may declare such tax or penalty or interest to be immediately due
and payable and may issue a warrant immediately.
b. As an additional or alternate remedy, the commission may issue a
warrant, directed to the city sheriff, commanding such sheriff to levy
upon and sell the real and personal property of such person which may be
found within the city, for the payment of the amount thereof, with any
A. 10030 1085
penalties and interest, and the cost of executing the warrant, and to
return such warrant to the commissioner and to pay to him or her the
money collected by virtue thereof within sixty days after receipt of
such warrant. The city sheriff shall, within five days after the
receipt of the warrant, file with the county clerk a copy thereof, and
thereupon such clerk shall enter in the judgment docket the name of the
person mentioned in the warrant and the amount of the tax, penalties and
interest for which the warrant is issued and the date when such copy is
filed. Thereupon the amount of such warrant so docketed shall become a
lien upon the title to and interest in real and personal property of the
person against whom the warrant is issued. The city sheriff shall then
proceed upon the warrant in the same manner and with like effect as that
provided by law in respect to executions issued against property upon
judgments of a court of record, and for services in executing the
warrant such sheriff shall be entitled to the same fees which he or she
may collect in the same manner. In the discretion of the commissioner a
warrant of like terms, force and effect may be issued and directed to
any officer or employee of the department of finance, and in the
execution thereof such officer or employee shall have all the powers
conferred by law upon sheriffs, but he or she shall be entitled to no
fee for compensation in excess of the actual expenses paid in the
performance of such duty. If a warrant is returned not satisfied in
full, the commissioner may from time to time issue new warrants and
shall also have the same remedies to enforce the amount due thereunder
as if the city had recovered judgment therefor and execution thereon had
been returned unsatisfied.
c. Whenever there is made a sale, transfer or assignment in bulk of
any part or the whole of a stock of merchandise or of fixtures, or
merchandise and of fixtures pertaining to the conducting of the business
of the seller, transferor or assignor, otherwise than in the ordinary
course of trade and in the regular prosecution of said business, the
purchaser, transferee or assignee shall at least ten days before taking
possession of such merchandise, fixtures, or merchandise and fixtures,
or paying therefor, notify the commissioner by registered mail of the
proposed sale and of the price, terms and conditions thereof whether or
not the seller, transferor or assignor, has represented to, or informed
the purchaser, transferee or assignee that it owes any tax pursuant to
this chapter and whether or not the purchaser, transferee or assignee
has knowledge that such taxes are owing, and whether any such taxes are
in fact owing.
Whenever the purchaser, transferee or assignee shall fail to give
notice to the commissioner as required by the opening paragraph of this
subdivision, or whenever the commissioner shall inform the purchaser,
transferee or assignee that a possible claim for such tax or taxes
exists, any sums of money, property or choses in action, or other
consideration, which the purchaser, transferee or assignee is required
to transfer over to the seller, transferor or assignor shall be subject
to a first priority right and lien for any such taxes theretofore or
thereafter determined to be due from the seller, transferor or assignor
to the city, and the purchaser, transferee or assignee is forbidden to
transfer to the seller, transferor or assignor any such sums of money,
property or choses in action to the extent of the amount of the city's
claim. For failure to comply with the provisions of this subdivision,
the purchaser, transferee or assignee, in addition to being subject to
the liabilities and remedies imposed under the provisions of article six
of the uniform commercial code, shall be personally liable for the
A. 10030 1086
payment to the city of any such taxes theretofore or thereafter deter-
mined to be due to the city from the seller, transferor or assignor, and
such liability may be assessed and enforced in the same manner as the
liability for tax under this chapter.
d. The commissioner of finance, if he or she finds that the interests
of the city will not thereby be jeopardized, and upon such conditions as
the commissioner of finance may require, may release any property from
the lien of any warrant or vacate such warrant for unpaid taxes, addi-
tions to tax, penalties and interest filed pursuant to subdivision b of
this section, and such release or vacating of the warrant may be
recorded in the office of any recording officer in which such warrant
has been filed. The clerk shall thereupon cancel and discharge as of the
original date of docketing the vacated warrant.
§ 11-2412 General powers of the commissioner. In addition to all
other powers granted to the commissioner in this chapter, he or she is
hereby authorized and empowered:
1. To make, adopt and amend rules and regulations appropriate to the
carrying out of this chapter and the purposes thereof; and to prescribe
the form of blanks, reports and other records relating to the enforce-
ment and administration of this chapter;
2. To extend, for cause shown, the time for filing any return for a
period not exceeding thirty days; and to compromise disputed claims in
connection with the taxes hereby imposed;
3. To request information from the department of taxation and finance
of the state of New York or the state liquor authority or the officials
of any political subdivision of this state or the treasury department of
the United States relative to any person; and to afford information to
such department of taxation and finance, liquor authority, officials or
treasury department relative to any person, any other provision of this
chapter to the contrary notwithstanding;
4. To delegate his or her functions under this section to a deputy or
assistant or other employee or employees of his or her department;
5. To assess, reassess, determine, revise and readjust the taxes
imposed under this chapter;
6. To provide by regulation for granting a refund of an appropriate
portion of the tax where the retail licensee ceases to do business
during the course of the tax year under circumstances which result in,
or would entitle such licensee to, a refund of license fee by the state
liquor authority. The provisions of section 11-2408 of this chapter
shall be applicable to such refunds.
§ 11-2413 Administration of oaths and compelling testimony. a. The
commissioner, his or her employees duly designated and authorized by the
commissioner, the tax appeals tribunal and any of its duly designated
and authorized employees shall have power to administer oaths and take
affidavits in relation to any matter or proceeding in the exercise of
their powers and duties under this chapter. The commissioner and the tax
appeals tribunal shall have power to subpoena and require the attendance
of witnesses and the production of books, papers and documents to secure
information pertinent to the performance of the duties of the commis-
sioner or the tax appeals tribunal under this chapter and of the
enforcement of this chapter and to examine them in relation thereto, and
to issue commissions for the examination of witnesses who are out of the
state or unable to attend before the commissioner or the tax appeals
tribunal or excused from attendance.
b. A justice of the supreme court either in court or at chambers shall
have power summarily to enforce by proper proceedings the attendance and
A. 10030 1087
testimony of witnesses and the production and examination of books,
papers and documents called for by the subpoena of the commissioner or
the tax appeals tribunal under this chapter.
c. Cross-reference; criminal penalties. For failure to obey subpoenas
or for testifying falsely, see section 11-4007 of this title; for
supplying false or fraudulent information, see section 11-4009 of this
title.
d. The officers who serve the summons or subpoena of the commissioner
of finance or the tax appeals tribunal under this chapter and witnesses
attending in response thereto shall be entitled to the same fees as are
allowed to officers and witnesses in civil cases in courts of record,
except as otherwise provided in this chapter. Such officers shall be
the city sheriff, and his or her duly appointed deputies or any officers
or employees of the department of finance or the tax appeals tribunal,
designated to serve such process.
§ 11-2414 Interest and penalties. (a) Interest on underpayments. If
any amount of tax is not paid on or before the last date prescribed for
payment, without regard to any extension of time granted for payment,
interest on such amount at the rate set by the commissioner of finance
pursuant to subdivision (g) of this section, or, if no rate is set, at
the rate of seven and one-half percent per annum, shall be paid for the
period from such last date to the date of payment. In computing the
amount of interest to be paid, such interest shall be compounded daily.
Interest under this subdivision shall not be paid if the amount thereof
is less than one dollar.
(b) (1) Failure to file return. (A) In case of failure to file a
return under this chapter on or before the prescribed date, determined
with regard to any extension of time for filing, unless it is shown that
such failure is due to reasonable cause and not due to willful neglect,
there shall be added to the amount required to be shown as tax on such
return five percent of the amount of such tax if the failure is for not
more than one month, with an additional five percent for each additional
month or fraction thereof during which such failure continues, not
exceeding twenty-five percent in the aggregate.
(B) In the case of a failure to file a return of tax within sixty days
of the date prescribed for filing of such return, determined with regard
to any extension of time for filing, unless it is shown that such fail-
ure is due to reasonable cause and not due to willful neglect, the addi-
tion to tax under subparagraph (A) of this paragraph shall not be less
than the lesser of one hundred dollars or one hundred percent of the
amount required to be shown as tax on such return.
(C) For purposes of this paragraph, the amount of tax required to be
shown on the return shall be reduced by the amount of any part of the
tax which is paid on or before the date prescribed for payment of the
tax and by the amount of any credit against the tax which may be claimed
upon the return.
(2) Failure to pay tax shown on return. In case of failure to pay the
amount shown as tax on a return required to be filed under this chapter
on or before the prescribed date, determined with regard to any exten-
sion of time for payment, unless it is shown that such failure is due to
reasonable cause and not due to willful neglect, there shall be added to
the amount shown as tax on such return one-half of one percent of the
amount of such tax if the failure is not for more than one month, with
an additional one-half of one percent for each additional month or frac-
tion thereof during which such failure continues, not exceeding twenty-
five percent in the aggregate. For the purpose of computing the addition
A. 10030 1088
for any month the amount of tax shown on the return shall be reduced by
the amount of any part of the tax which is paid on or before the begin-
ning of such month and by the amount of any credit against the tax which
may be claimed upon the return. If the amount of tax required to be
shown on a return is less than the amount shown as tax on such return,
this paragraph shall be applied by substituting such lower amount.
(3) Failure to pay tax required to be shown on return. In case of
failure to pay any amount in respect of any tax required to be shown on
a return required to be filed under this chapter which is not so shown,
including a determination made pursuant to section 11-2407 of this chap-
ter, within ten days of the date of a notice and demand therefor, unless
it is shown that such failure is due to reasonable cause and not due to
willful neglect, there shall be added to the amount of tax stated in
such notice and demand one-half of one percent of such tax if the fail-
ure is not for more than one month, with an additional one-half of one
percent for each additional month or fraction thereof during which such
failure continues, not exceeding twenty-five percent in the aggregate.
For the purpose of computing the addition for any month, the amount of
tax stated in the notice and demand shall be reduced by the amount of
any part of the tax which is paid before the beginning of such month.
(4) Limitations on additions.
(A) With respect to any return the amount of the addition under para-
graph one of this subdivision shall be reduced by the amount of the
addition under paragraph two of this subdivision for any month to which
an addition applies under both paragraphs one and two. In any case
described in subparagraph (B) of paragraph one of this subdivision, the
amount of the addition under such paragraph one shall not be reduced
below the amount provided in such subparagraph.
(B) With respect to any return, the maximum amount of the addition
permitted under paragraph three of this subdivision shall be reduced by
the amount of the addition under paragraph one of this subdivision,
determined without regard to subparagraph (B) of such paragraph one,
which is attributable to the tax for which the notice and demand is made
and which is not paid within ten days of such notice and demand.
(c) Underpayment due to negligence. (1) If any part of an underpay-
ment of tax is due to negligence or intentional disregard of this chap-
ter or any rules or regulations relating thereto, but without intent to
defraud, there shall be added to the tax a penalty equal to five percent
of the underpayment.
(2) There shall be added to the tax, in addition to the amount deter-
mined under paragraph one of this subdivision, an amount equal to fifty
percent of the interest payable under subdivision (a) of this section
with respect to the portion of the underpayment described in such para-
graph one which is attributable to the negligence or intentional disre-
gard referred to in such paragraph one, for the period beginning on the
last date prescribed by law for payment of such underpayment, determined
without regard to any extension, and ending on the date of the assess-
ment of the tax, or, if earlier, the date of the payment of the tax.
(d) Underpayment due to fraud. (1) If any part of an underpayment of
tax is due to fraud, there shall be added to the tax a penalty equal to
fifty percent of the underpayment.
(2) There shall be added to the tax, in addition to the penalty deter-
mined under paragraph one of this subdivision, an amount equal to fifty
percent of the interest payable under subdivision (a) of this section
with respect to the portion of the underpayment described in such para-
graph one which is attributable to fraud, for the period beginning on
A. 10030 1089
the last day prescribed by law for payment of such underpayment, deter-
mined without regard to any extension, and ending on the date of the
assessment of the tax, or, if earlier, the date of the payment of the
tax.
(3) The penalty under this subdivision shall be in lieu of any other
addition to tax imposed by subdivision (b) or (c) of this section.
(e) Additional penalty. Any person who, with fraudulent intent, shall
fail to pay any tax imposed by this chapter, or to make, render, sign or
certify any return, or to supply any information within the time
required by or under this chapter, shall be liable for a penalty of not
more than one thousand dollars, in addition to any other amounts
required under this chapter to be imposed, assessed and collected by the
commissioner of finance. The commissioner of finance shall have the
power, in his or her discretion, to waive, reduce or compromise any
penalty under this subdivision.
(f) The interest and penalties imposed by this section shall be paid
and disposed of in the same manner as other revenues from this chapter.
Unpaid interest and penalties may be enforced in the same manner as the
tax imposed by this chapter.
(g)(1) Authority to set interest rates. The commissioner of finance
shall set the rate of interest to be paid pursuant to subdivision (a) of
this section, but if no such rate of interest is set, such rate shall be
deemed to be set at seven and one-half percent per annum. Such rate
shall be the rate prescribed in paragraph two of this subdivision but
shall not be less than seven and one-half percent per annum. Any such
rate set by the commissioner of finance shall apply to taxes, or any
portion thereof, which remain or become due on or after the date on
which such rate becomes effective and shall apply only with respect to
interest computed or computable for periods or portions of periods
occurring in the period in which such rate is in effect.
(2) General rule. The rate of interest set under this subdivision
shall be the sum of (i) the federal short-term rate as provided under
paragraph three of this subdivision, plus (ii) seven percentage points.
(3) Federal short-term rate. For purposes of this subdivision:
(A) The federal short-term rate for any month shall be the federal
short-term rate determined by the United States secretary of the treas-
ury during such month in accordance with subsection (d) of section
twelve hundred seventy-four of the internal revenue code for use in
connection with section six thousand six hundred twenty-one of the
internal revenue code. Any such rate shall be rounded to the nearest
full percent, or, if a multiple of one-half of one percent, such rate
shall be increased to the next highest full percent.
(B) Period during which rate applies.
(i) In general. Except as provided in clause (ii) of this subpara-
graph, the federal short-term rate for the first month in each calendar
quarter shall apply during the first calendar quarter beginning after
such month.
(ii) Special rule for the month of September, nineteen hundred eight-
y-nine. The federal short-term rate for the month of April, nineteen
hundred eighty-nine shall apply with respect to setting the rate of
interest for the month of September, nineteen hundred eighty-nine.
(4) Publication of interest rate. The commissioner of finance shall
cause to be published in the City Record, and give other appropriate
general notice of, the interest rate to be set under this subdivision no
later than twenty days preceding the first day of the calendar quarter
during which such interest rate applies. The setting and publication of
A. 10030 1090
such interest rate shall not be included within paragraph (a) of subdi-
vision five of section one thousand forty-one of the city charter of the
preceding municipality as it existed January first, nineteen hundred
ninety-four relating to the definition of a rule.
(h) Miscellaneous. (1) The certificate of the commissioner of finance
to the effect that a tax has not been paid, that a return has not been
filed, that information has not been supplied pursuant to the provisions
of this chapter or that records have not been retained pursuant to the
provisions of this chapter shall be prima facie evidence thereof.
(2) Cross-reference: For criminal penalties, see chapter forty of this
title.
§ 11-2415 Returns to be secret. (a) Except in accordance with proper
judicial order, or as otherwise provided by law, it shall be unlawful
for the commissioner, the tax appeals tribunal or any officer or employ-
ee of the city to divulge or make known in any manner any information
relating to the business of a taxpayer contained in any return required
under this chapter. The officers charged with the custody of such
returns shall not be required to produce any of them or evidence of
anything contained in them in any action or proceeding in any court,
except on behalf of the commissioner in an action or proceeding under
the provisions of this chapter, or on behalf of any party to any action
or proceeding under the provisions of this chapter when the returns or
facts shown thereby are directly involved in such action or proceeding,
in either of which events the court may require the production of, and
may admit in evidence, so much of said returns or of the facts shown
thereby, as are pertinent to the action or proceeding and no more.
Nothing under this section shall be construed to prohibit the delivery
to a taxpayer or the taxpayer's duly authorized representative of a
certified copy of any return filed in connection with his or her tax nor
to prohibit the publication of statistics so classified as to prevent
the identification of particular returns and the items thereof, or the
inspection by the corporation counsel or other legal representatives of
the city, or by the district attorney of Richmond county, of the return
of any taxpayer who shall bring action to set aside or review the tax
based thereon, or against whom an action or proceeding under this chap-
ter may be instituted. Returns shall be preserved for three years and
thereafter until the commissioner permits them to be destroyed.
(b) (1) Any officer or employee of the city who willfully violates the
provisions of subdivision (a) of this section shall be dismissed from
office and be incapable of holding any public office in this city for a
period of five years thereafter.
(2) Cross-reference: For criminal penalties, see chapter forty of this
title.
(c) This section shall be deemed a state statute for purposes of
paragraph (a) of subdivision two of section eighty-seven of the public
officers law.
(d) Notwithstanding anything in subdivision (a) of this section to the
contrary, if a taxpayer has petitioned the tax appeals tribunal for
administrative review as provided in section one hundred seventy of the
charter of the preceding municipality as it existed January first, nine-
teen hundred ninety-four, the commissioner of finance shall be author-
ized to present to the tribunal any report or return of such taxpayer,
or any information contained therein or relating thereto, which may be
material or relevant to the proceeding before the tribunal. The tax
appeals tribunal shall be authorized to publish a copy or a summary of
any decision rendered pursuant to section one hundred seventy-one of the
A. 10030 1091
charter of the preceding municipality as it existed January first, nine-
teen hundred ninety-four.
§ 11-2416 Notices and limitations of time. a. Any notice authorized
or required under the provisions of this chapter may be given by mailing
the same to the person for whom it is intended in a postpaid envelope
addressed to such person at the address given in the last return filed
by him or her pursuant to the provisions of this chapter or in any
application made by him or her, or, if no return has been filed or
application made, then to such address as may be obtainable. The mailing
of such notice shall be presumptive evidence of the receipt of the same
by the person to whom addressed. Any period of time which is determined
according to the provisions of this chapter by the giving of notice
shall commence to run from the date of mailing of such notice.
b. The provisions of the civil practice law and rules or any other law
relative to limitations of time for the enforcement of a civil remedy
shall not apply to any proceeding or action taken by the city to levy,
appraise, assess, determine or enforce the collection of any tax or
penalty or interest provided by this chapter. However, except in the
case of a wilfully false or fraudulent return with intent to evade the
tax, no assessment of additional tax shall be made after the expiration
of more than three years from the date of the filing of a return,
provided, however, that where no return has been filed as provided by
law the tax may be assessed at any time.
c. Where, before the expiration of the period prescribed in this
section for the assessment of an additional tax, a taxpayer has
consented in writing that such period be extended, the amount of such
additional tax due may be determined at any time within such extended
period. The period so extended may be further extended by subsequent
consents in writing made before the expiration of the extended period.
d. If any return, claim, statement, notice, application, or other
document required to be filed, or any payment required to be made, with-
in a prescribed period or on or before a prescribed date under authority
of any provision of this chapter is, after such period or such date,
delivered by United States mail to the commissioner of finance, the tax
appeals tribunal, bureau, office, officer or person with which or with
whom such document is required to be filed, or to which or to whom such
payment is required to be made, the date of the United States postmark
stamped on the envelope shall be deemed to be the date of delivery. This
subdivision shall apply only if the postmark date falls within the
prescribed period or on or before the prescribed date for the filing of
such document, or for making the payment, including any extension grant-
ed for such filing or payment, and only if such document or payment was
deposited in the mail, postage prepaid, properly addressed to the
commissioner of finance, the tax appeals tribunal, bureau, office, offi-
cer or person with which or with whom the document is required to be
filed or to which or to whom such payment is required to be made. If any
document is sent by United States registered mail, such registration
shall be prima facie evidence that such document was delivered to the
commissioner of finance, the tax appeals tribunal, bureau, office, offi-
cer or person to which or to whom addressed, and the date of registra-
tion shall be deemed the postmark date. The commissioner of finance and,
where relevant, the tax appeals tribunal are authorized to provide by
regulation the extent to which, such provisions with respect to prima
facie evidence of delivery and the postmark date, shall apply to certi-
fied mail. Except as provided in subdivision f of this section, this
subdivision shall apply in the case of postmarks not made by the United
A. 10030 1092
States postal service only if and to the extent provided by regulation
of the commissioner of finance or, where relevant, the tax appeals
tribunal.
e. When the last day prescribed under authority of this chapter,
including any extension of time, for performing any act falls on a
Saturday, Sunday or legal holiday in the state, the performance of such
act shall be considered timely if it is performed on the next succeeding
day which is not a Saturday, Sunday or legal holiday.
f. (1) Any reference in subdivision d of this section to the United
States mail shall be treated as including a reference to any delivery
service designated by the secretary of the treasury of the United States
pursuant to section seventy-five hundred two of the internal revenue
code and any reference in subdivision d of this section to a United
States postmark shall be treated as including a reference to any date
recorded or marked in the manner described in section seventy-five
hundred two of the internal revenue code by a designated delivery
service. If the commissioner of finance finds that any delivery service
designated by such secretary is inadequate for the needs of the city,
the commissioner of finance may withdraw such designation for purposes
of this title. The commissioner of finance may also designate additional
delivery services meeting the criteria of section seventy-five hundred
two of the internal revenue code for purposes of this title, or may
withdraw any such designation if the commissioner of finance finds that
a delivery service so designated is inadequate for the needs of the
city. Any reference in subdivision d of this section to the United
States mail shall be treated as including a reference to any delivery
service designated by the commissioner of finance and any reference in
subdivision d of this section to a United States postmark shall be
treated as including a reference to any date recorded or marked in the
manner described in section seventy-five hundred two of the internal
revenue code by a delivery service designated by the commissioner of
finance, provided, however, any withdrawal of designation or additional
designation by the commissioner of finance shall not be effective for
purposes of service upon the tax appeals tribunal, unless and until such
withdrawal of designation or additional designation is ratified by the
president of the tax appeals tribunal.
(2) Any equivalent of registered or certified mail designated by the
United States secretary of the treasury, or as may be designated by the
commissioner of finance pursuant to the same criteria used by such
secretary for such designations pursuant to section seventy-five hundred
two of the internal revenue code, shall be included within the meaning
of registered or certified mail as used in subdivision d of this
section. If the commissioner of finance finds that any equivalent of
registered or certified mail designated by such secretary or the commis-
sioner of finance is inadequate for the needs of the city, the commis-
sioner of finance may withdraw such designation for purposes of this
title, provided, however, any withdrawal of designation or additional
designation by the commissioner of finance shall not be effective for
purposes of service upon the tax appeals tribunal, unless and until such
withdrawal of designation or additional designation is ratified by the
president of the tax appeals tribunal.
§ 11-2417 Construction and enforcement. This chapter shall be
construed and enforced in conformity with article twenty-nine of the tax
law, pursuant to which it is enacted.
A. 10030 1093
CHAPTER 25
TAX ON OCCUPANCY OF HOTEL ROOMS
§ 11-2501 Definitions. When used in this chapter the following terms
shall mean or include:
1. "Person." An individual, partnership, society, association, joint-
stock company, corporation, estate, receiver, trustee, assignee, refer-
ee, or any other person acting in a fiduciary or representative capaci-
ty, whether appointed by a court or otherwise and any combination
thereof.
2. "Operator." Any person operating a hotel in the city of Staten
Island, including, but not limited to, the owner or proprietor of such
premises, lessee, sublessee, mortgagee in possession, licensee or any
other person otherwise operating such hotel.
3. "Occupant." A person who, for a consideration, uses, possesses, or
has the right to use or possess, any room or rooms in a hotel under any
lease, concession, permit, right of access, license to use or other
agreement, or otherwise. "Right to use or possess" includes the rights
of a room remarketer as described in subdivision twelve of this section.
4. "Occupancy." The use or possession, or the right to the use or
possession of any room or rooms in a hotel, or the right to the use or
possession of the furnishings or to the services and accommodations
accompanying the use and possession of the room or rooms. "Right to use
or possess" includes the rights of a room remarketer as described in
subdivision twelve of this section.
5. "Hotel." A building or portion of it which is regularly used and
kept open as such for the lodging of guests. The term "hotel" includes
an apartment hotel, a motel, boarding house or club, whether or not
meals are served.
6. "Room." Any room of any kind, other than a bathroom or lavatory, in
any part or portion of a hotel which is available for, or let out for,
use or possession for any purpose other than a place of assembly as
defined in section 27-232 of the code of the preceding municipality.
7. "Rent." The consideration received for occupancy valued in money,
whether received in money or otherwise, including all receipts, cash,
credits, and property or services of any kind or nature, including any
service or other charge or amount required to be paid as a condition for
occupancy, and also any amount for which credit is allowed by the opera-
tor or room remarketer to the occupant, without any deduction therefrom
whatsoever, whether received by the operator or a room remarketer or
another person on behalf of either of them.
8. "Permanent resident." Any occupant of any room or rooms in a hotel
for at least one hundred eighty consecutive days shall be considered a
permanent resident with regard to the period of such occupancy.
9. "Commissioner of finance." The commissioner of finance of the city.
10. "Comptroller." The comptroller of the city.
11. "Tax appeals tribunal." The tax appeals tribunal established by
section one hundred sixty-eight of the charter of the preceding munici-
pality as it existed January first, nineteen hundred ninety-four.
12. "Room remarketer." A person who reserves, arranges for, conveys,
or furnishes occupancy, whether directly or indirectly, to an occupant
for rent in an amount determined by such room remarketer, directly or
indirectly, whether pursuant to a written or other agreement. Such
person's ability or authority to reserve, arrange for, convey, or
furnish occupancy, directly or indirectly, and to determine rent there-
for, shall be the "rights of a room remarketer". A room remarketer is
A. 10030 1094
not a permanent resident with respect to a room for which such person
has the rights of a room remarketer.
§ 11-2502 Imposition of tax. a. (1) On and after July first, nineteen
hundred seventy until and including August thirty-first, nineteen
hundred eighty, there is hereby imposed and there shall be paid a tax
for every occupancy of each room in a hotel in the city of Staten Island
at the rates set forth in, and determined in accordance with the follow-
ing table:
If the rent per day for the room is: The tax is:
Less than $10 ............................................. $.25 per day
$10 or more, but less than $15 ............................ $.50 per day
$15 or more, but less than $20 ............................ $.75 per day
$20 or more .............................................. $1.00 per day
(2) On and after September first, nineteen hundred eighty, there is
hereby imposed and there shall be paid a tax for every occupancy of each
room in a hotel in the city of Staten Island at the rates set forth in,
and determined in accordance with, the following table:
If the rent per day for the room is: The tax is:
$10 or more, but less than $20 ............................ $.50 per day
$20 or more, but less than $30 ........................... $1.00 per day
$30 or more, but less than $40 ........................... $1.50 per day
$40 or more .............................................. $2.00 per day
Where a person occupies a room for less than a full day and pays less
than the rent for a full day, the tax shall nevertheless be the same
amount as would be due had such person occupied the room for a full day
at the rent for a full day.
(3) In addition to the tax imposed by paragraph two of this subdivi-
sion, there is hereby imposed and there shall be paid a tax for every
occupancy of each room in a hotel in the city (A) at the rate of five
percent of the rent or charge per day for each such room up to and
including August thirty-first, nineteen hundred ninety, (B) at the rate
of six percent of the rent or charge per day for each such room on and
after September first, nineteen hundred ninety and before December
first, nineteen hundred ninety-four, (C) at the rate of five percent of
the rent or charge per day for each such room on and after December
first, nineteen hundred ninety-four and before March first, two thousand
nine, (D) at the rate of five and seven-eighths percent of the rent or
charge per day for each such room on and after March first, two thousand
nine and before December first, two thousand thirteen, (E) at the rate
of five percent of the rent or charge per day for each such room on and
after December first, two thousand thirteen and before December twenti-
eth, two thousand thirteen, (F) at the rate of five and seven-eighths
percent of the rent or charge per day for each such room on and after
December twentieth, two thousand thirteen and before December first, two
thousand twenty-three, and (G) at the rate of five percent of the rent
or charge per day for each such room on and after December first, two
thousand twenty-three.
(4) (A) When occupancy is provided, for a single consideration, with
property, services, amusement charges, or any other items, the separate
sale of which is not subject to tax under this chapter, and the rent
paid for such occupancy does not qualify for the exemption in this
subdivision, the entire consideration shall be treated as rent subject
to tax under paragraph one of this subdivision; provided, however, that
where the amount of the rent for occupancy is stated separately from the
price of such property, services, amusement charges or other items on
any sales slip, invoice, receipt, or other statement given the occupant
A. 10030 1095
and such rent is reasonable in relation to the value of such property,
services, amusement charges, or other items, only such separately stated
rent will be subject to tax under this subdivision. (B) In regard to
the collection of tax on occupancies by remarketers, when occupancy is
provided, for a single consideration, with property, services, amusement
charges, or any other items, whether or not such other items are taxa-
ble, the rent portion of the consideration for such sale shall be
computed as follows: the total consideration for the sale multiplied by
a fraction, the numerator of which shall be the consideration paid to
the hotel for the occupancy and the denominator of which shall be the
consideration paid to the hotel for the occupancy plus the consideration
paid to the providers of the other items being sold, or by any other
reasonable method pursuant to which the rent portion of consideration
would be no less than the computation of rent portion of consideration
under subparagraph (A) of this paragraph. Nothing in this subdivision
shall be construed to subject to tax or exempt from tax any service or
property or amusement charge or other items otherwise subject to tax or
exempt from tax under this chapter.
(5) A room remarketer shall be allowed a refund or credit against the
taxes collected and required to be remitted pursuant to section 11-2505
of this chapter in the amount of the tax it paid to the operator of the
hotel or another room remarketer under this subdivision. Provided,
however, that in order to qualify for a refund or credit under this
paragraph with respect to any quarterly period, as described in subdivi-
sion a of section 11-2504 of this chapter, the room remarketer must,
with respect to such quarter, (A) be registered for hotel room occupancy
tax purposes under section 11-2514 of this chapter, and (B) collect the
taxes imposed by paragraphs two and three of this subdivision. Subject
to the conditions and limitations of this paragraph, the provisions of
section 11-2507 of this chapter shall apply to refunds or credits under
this paragraph.
(6) Where the rent is paid or charged or billed, or falls due on
either a weekly, monthly or other term basis, the daily rent upon which
the tax is determined shall be the result obtained by dividing the rent
for such term by the number of days in such term. Where the rent is for
more than one room, including but not limited to a suite of rooms, the
daily rent per room upon which tax is determined shall be calculated by
multiplying the daily rent for the group of rooms by a fraction, the
numerator of which shall be the daily rent for the particular room, or a
similar room, when such room is rented alone with similar bath facili-
ties, and the denominator of which shall be the total of the daily rent
for the individual rooms in the group of rooms, or similar rooms, when
such rooms are rented alone with similar bath facilities. In any case in
which it is not possible to determine the daily rent per room in the
manner described under this paragraph, the commissioner of finance shall
prescribe methods for making such determination.
b. (1) No tax shall be imposed under this chapter upon a permanent
resident.
(2) For purposes of this subdivision, an occupant who is eligible to
request and has requested a lease pursuant to the provisions of para-
graph two of subdivision (a) of section 2522.5 of the rent stabilization
regulations promulgated by the division of housing and community renewal
of the state of New York, shall tentatively be accorded the status of
permanent resident as of the date of such request, notwithstanding that
such occupant has not met the one hundred eighty-consecutive-day
requirement contained in subdivision eight of section 11-2501 of this
A. 10030 1096
chapter as of such date. In the case of such an occupant, the operator
or room remarketer shall not collect the taxes imposed by this chapter
for any day, commencing with the date such lease is requested, which
falls within a period of continuous occupancy by such occupant of a room
or rooms in the hotel. Provided, however, if such occupant ceases to
occupy a room or rooms in the hotel prior to the completion of one
hundred eighty consecutive days of occupancy, any taxes not collected
theretofore by reason of the provisions of this paragraph shall become
immediately due and payable on the date of cessation of occupancy and
shall be collected by the operator or room remarketer from such occu-
pant. In the event, however, that the operator or room remarketer is
unable to collect such taxes from the occupant, the operator or room
remarketer shall not be liable to the city for such taxes. The
provisions of this paragraph shall apply with respect to leases
requested on or after September first, nineteen hundred ninety.
c. No tax shall be imposed under this chapter upon any organization
described in subdivision (a) of section eleven hundred sixteen of the
tax law to the extent such organization is not subject to the tax
imposed under subdivision (e) of section eleven hundred five of the tax
law.
d. (1) No tax shall be imposed under this chapter upon any person
occupying any room or rooms in a hotel solely and directly as a result
of such person's involuntary displacement from premises by the attack on
the World Trade Center on September eleventh, two thousand one, provided
such premises were not subject to the tax imposed by this section or the
tax imposed under section eleven hundred seven of the tax law.
(2) Where an occupant claims exemption from the tax under the
provisions of paragraph one of this subdivision, the rent shall be
deemed taxable under this chapter unless the operator shall receive from
the occupant claiming such exemption a signed written statement describ-
ing the specific circumstances providing the basis for such claim and
containing such other information as the commissioner of finance may
require. The operator shall retain such statement and provide it to the
commissioner of finance upon request.
e. Where any corporation, or association, or trust, or community
chest, fund or foundation, organized and operated exclusively for reli-
gious, charitable, or educational purposes, or for the prevention of
cruelty to children or animals, and no part of the net earnings of which
inures to the benefit of any private shareholder or individual and no
substantial part of the activities of which is carrying on propaganda,
or otherwise attempting to influence legislation, carries on its activ-
ities in furtherance of any of the purposes for which it was organized,
in premises in which, as part of said activities, it operates a hotel,
occupancy of rooms in said premises and rents therefrom received by such
corporation or association shall not be subject to tax under this chap-
ter. Nothing in this subdivision shall be deemed to include an organ-
ization operated for the primary purpose of carrying on a trade or busi-
ness for profit, whether or not all of its profits are payable to one or
more organizations described in this subdivision.
f. The tax to be collected shall be stated and charged separately from
the rent and shown separately on any record thereof, at the time when
the occupancy is arranged or contracted for and charged for and upon
every evidence of occupancy or any bill or statement or charge made for
said occupancy issued or delivered by the operator or room remarketer.
(1) Where an occupant rents a room directly from an operator, the tax
shall be paid by the occupant to the operator as trustee for and on
A. 10030 1097
account of the city, and the operator shall be liable for the collection
of the tax on the rent and for the payment of the tax on the rent.
(2) The operator or room remarketer and any officer of any corporate
operator or room remarketer shall be personally liable for the portion
of the tax collected or required to be collected under this chapter, and
the operator shall have the same right in respect to collecting the tax
from the occupant, or in respect to nonpayment of the tax by the occu-
pant as if the tax were a part of the rent for the occupancy payable at
the time such tax shall become due and owing, including all rights of
eviction, dispossession, repossession and enforcement of any innkeeper's
lien that he or she may have in the event of nonpayment of rent by the
occupant; provided however, that the commissioner of finance shall be
joined as a party in any action or proceeding brought by the operator to
collect or enforce collection of the tax.
g. Where the occupant has failed to pay and the operator or room
remarketer has failed to collect a tax as imposed by this chapter, then
in addition to all other rights, obligations and remedies provided, such
tax shall be payable by the occupant directly to the commissioner of
finance, and it shall be the duty of the occupant to file a return ther-
eof with the commissioner of finance and to pay the tax imposed therein
to the commissioner of finance within fifteen days after such tax was
due.
h. The commissioner of finance may, wherever he or she deems it neces-
sary for the proper enforcement of this chapter, provide by regulation
that the occupant shall file returns and pay directly to the commission-
er of finance the tax imposed by this chapter, at such times as returns
are required to be filed and payment over made by the operator or room
remarketer.
i. The tax imposed by this chapter shall be paid upon any occupancy on
and after July first, nineteen hundred seventy, although such occupancy
is had pursuant to a contract, lease or other arrangement made prior to
such effective date. Where rent is paid, or charged or billed, or falls
due on either a weekly, monthly, or other term basis, the rent so paid,
charged, billed or falling due shall be subject to the tax imposed by
this chapter to the extent that it covers any portion of the period on
and after July first, nineteen hundred seventy, and such payment, bill,
charge or rent due shall be apportioned on the basis of the ratio of the
number of days falling within said period, to the total number of days
covered thereby. Where any tax has been paid pursuant to this chapter
upon any rent which has been ascertained to be worthless, the commis-
sioner of finance may by regulation provide for credit or refund of the
amount of such tax upon application therefor as provided in section
11-2507 of this chapter.
j. For the purpose of the proper administration of this chapter and to
prevent evasion of the tax hereby imposed, it shall be presumed that all
rents are subject to tax until the contrary is established, and the
burden of proving that a rent for occupancy is not taxable under this
chapter shall be upon the operator, the room remarketer, or the occu-
pant. Where an occupant claims exemption from the tax under the
provisions of subdivision c of this section, the rent shall be deemed
taxable under this chapter unless the operator or room remarketer shall
receive from the occupant claiming such exemption a copy of the exempt
organization certificate that is necessary to obtain exemption from the
tax imposed under subdivision (e) of section eleven hundred five of the
tax law, together with a certificate duly executed by the organization
named in such certificate certifying that the occupant is its agent,
A. 10030 1098
representative or employee and that his or her occupancy is paid or to
be paid by, and is necessary or required in the course of or in
connection with the affairs of said organization.
k. No operator or room remarketer shall advertise or hold out to the
public in any manner, directly or indirectly, that the tax imposed by
this chapter is not considered as a mandatory addition to the rent
charged to the occupant.
1. An occupancy that an operator conveys or furnishes to a room
remarketer that the room remarketer intends to convey or furnish,
directly or indirectly, to an occupant for rent shall be exempt from the
taxes imposed by this section, provided that such room remarketer
furnishes the operator with a certificate in such form and containing
such information as may be prescribed by the commissioner of finance.
The operator shall retain such statement and provide it to the commis-
sioner of finance upon request.
§ 11-2503 Records to be kept. a. Every operator and every room
remarketer shall keep records of every occupancy and of all rent paid,
charged or due thereon and of the tax payable thereon, in such form as
the commissioner of finance may by regulation require. Such records
shall be available for inspection and examination at any time upon
demand by the commissioner of finance or his or her duly authorized
agent or employee and shall be preserved for a period of three years,
except that the commissioner of finance may consent to their destruction
within that period or may require that they be kept longer.
b. Notwithstanding the provisions of sections three hundred five and
three hundred nine of the state technology law or any other law, the
commissioner may require any person who has elected to maintain in an
electronic format any portion of the records required to be maintained
by that person under this chapter, to make the electronic records avail-
able and accessible to the commissioner, notwithstanding that the
records are also maintained in a hard copy format.
§ 11-2504 Returns. a. Every operator and every room remarketer shall
file with the commissioner of finance a return of occupancy and of
rents, and of the taxes payable thereon, for the quarterly periods
ending on the last day of February, May, August and November of each
year. Such returns shall be filed within twenty days after the end of
the quarterly period covered thereby. The commissioner of finance may
permit or require returns to be made by other periods and upon such
dates as he or she may specify. If the commissioner of finance deems it
necessary in order to insure the payment of the tax imposed by this
chapter, he or she may require returns to be made for shorter periods
than those prescribed pursuant to the provisions of this subdivision and
upon such dates as he or she may specify.
b. The forms of returns shall be prescribed by the commissioner of
finance and shall contain such information as he or she may deem neces-
sary for the proper administration of this chapter. The commissioner of
finance may require amended returns to be filed within twenty days after
notice and to contain the information specified in the notice.
c. If a return required by this chapter is not filed or if a return
when filed is incorrect or insufficient on its face the commissioner of
finance shall take the necessary steps to enforce the filing of such a
return or a corrected return.
§ 11-2505 Payment of tax. At the time of filing a return of occupancy
and of rents each operator and room remarketer shall pay to the commis-
sioner of finance the taxes imposed by this chapter upon the rents
required to be included in such return, as well as all other moneys
A. 10030 1099
collected by the operator or room remarketer acting or purporting to act
under the provisions of this chapter, even though it be judicially
determined that the tax collected is invalidly imposed. All the taxes
for the period for which a return is required to be filed shall be due
from the operator or room remarketer and payable to the commissioner of
finance on the date limited for the filing of the return for such peri-
od, without regard to whether a return is filed or whether the return
which is filed correctly shows the amount of rents and the taxes due
thereon. Where the commissioner of finance in his or her discretion
deems it necessary to protect revenues to be obtained under this chapter
he or she may require any operator or room remarketer required to
collect the tax imposed by this chapter to file with him or her a bond,
issued by a surety company authorized to transact business in this state
and approved by the superintendent of insurance of this state as to
solvency and responsibility, in such amount as the commissioner of
finance may fix, to secure the payment of any tax or penalties and
interest due or which may become due from such operator or room remark-
eter. In the event that the commissioner of finance determines that an
operator or room remarketer is to file such bond he or she shall give
notice to such operator or room remarketer to that effect specifying the
amount of the bond required. The operator or room remarketer shall file
such bond within five days after the giving of such notice unless within
such five days the operator or room remarketer shall request in writing
a hearing before the commissioner of finance at which the necessity,
propriety and amount of the bond shall be determined by the commissioner
of finance. Such determination shall be final and shall be complied with
within fifteen days after the giving of notice thereof. In lieu of such
bond, securities approved by the commissioner of finance or cash in such
amount as he or she may prescribe, may be deposited which shall be kept
in the custody of the commissioner of finance who may at any time with-
out notice to the depositor apply them to any tax or interest or penal-
ties due, and for that purpose the securities may be sold by him or her
at public or private sale without notice to the depositor thereof.
§ 11-2506 Determination of tax. If a return required by this chapter
is not filed, or if a return when filed is incorrect or insufficient,
the amount of tax due shall be determined by the commissioner of finance
from such information as may be obtainable and, if necessary, the tax
may be estimated on the basis of external indices, such as number of
rooms, location, scale of rents, comparable rents, type of accommo-
dations and service, number of employees or other factors. Notice of
such determination shall be given to the person liable for the
collection and/or payment of the tax. Such determination shall finally
and irrevocably fix the tax unless the person against whom it is
assessed, within ninety days after giving of notice of such determi-
nation, or, if the commissioner of finance has established a concil-
iation procedure pursuant to section 11-124 of the code of the preceding
municipality and the taxpayer has requested a conciliation conference in
accordance therewith, within ninety days from the mailing of a concil-
iation decision or the date of the commissioner's confirmation of the
discontinuance of the conciliation proceeding, both (1) serves a peti-
tion upon the commissioner of finance and (2) files a petition with the
tax appeals tribunal for a hearing, or unless the commissioner of
finance of his or her own motion shall redetermine the same. Such hear-
ing and any appeal to the tax appeals tribunal sitting en banc from the
decision rendered in such hearing shall be conducted in the manner and
subject to the requirements prescribed by the tax appeals tribunal
A. 10030 1100
pursuant to sections one hundred sixty-eight through one hundred seven-
ty-two of the charter of the preceding municipality as it existed Janu-
ary first, nineteen hundred ninety-four. After such hearing the tax
appeals tribunal shall give notice of its decision to the person against
whom the tax is assessed. A decision of the tax appeals tribunal
sitting en banc shall be reviewable for error, illegality or unconstitu-
tionality or any other reason whatsoever by a proceeding under article
seventy-eight of the civil practice law and rules if application there-
for is made to the supreme court by the person against whom the tax was
assessed, within four months after the giving of the notice of such tax
appeals tribunal decision. A proceeding under article seventy-eight of
the civil practice law and rules shall not be instituted by a person
liable for the tax unless: (a) the amount of any tax sought to be
reviewed, with penalties and interest thereon, if any, shall be first
deposited with the commissioner of finance and there shall be filed with
the commissioner of finance an undertaking, issued by a surety company
authorized to transact business in this state and approved by the super-
intendent of insurance of this state as to solvency and responsibility,
in such amount as a justice of the supreme court shall approve, to the
effect that if such proceeding be dismissed or the tax confirmed, such
person will pay all costs and charges which may accrue in the prose-
cution of the proceeding; or (b) at the option of such person such
undertaking filed with the commissioner of finance may be in a sum
sufficient to cover the taxes, penalties and interest thereon stated in
such decision plus the costs and charges which may accrue against it in
the prosecution of the proceeding, in which event such person shall not
be required to deposit such taxes, penalties and interest as a condition
precedent to the application.
§ 11-2507 Refunds. a. In the manner provided in this section the
commissioner of finance shall refund or credit, without interest, any
tax, penalty or interest erroneously, illegally or unconstitutionally
collected or paid if written application to the commissioner of finance
for such refund shall be made within one year from the payment thereof.
Whenever a refund or credit is made or denied by the commissioner of
finance, he or she shall state his or her reasons therefor and give
notice thereof to the taxpayer in writing. Such application may be made
by the occupant, operator, room remarketer or other person who has actu-
ally paid the tax to the commissioner of finance. Such application may
also be made by an operator or room remarketer who has collected and
paid over such tax to the commissioner of finance provided that the
application is made within one year of the payment by the occupant to
the operator or room remarketer, but no actual refund of moneys shall be
made to such operator or room remarketer until he or she shall first
establish to the satisfaction of the commissioner of finance, under such
regulations as the commissioner of finance may prescribe, that he or she
has repaid to the occupant the amount for which the application for
refund is made. The commissioner of finance may, in lieu of any refund
required to be made, allow credit therefor on payments due from the
applicant.
b. Any determination of the commissioner of finance denying a refund
or credit pursuant to subdivision a of this section shall be final and
irrevocable unless the applicant for such refund or credit, within nine-
ty days from the mailing of notice of such determination, or, if the
commissioner of finance has established a conciliation procedure pursu-
ant to section 11-124 of the code of the preceding municipality and the
applicant has requested a conciliation conference in accordance there-
A. 10030 1101
with, within ninety days from the mailing of a conciliation decision or
the date of the commissioner's confirmation of the discontinuance of the
conciliation proceeding, both (1) serves a petition upon the commission-
er of finance and (2) files a petition with the tax appeals tribunal for
a hearing. Such petition for a refund or credit, made as provided in
this section, shall be deemed an application for a revision of any tax,
penalty or interest complained of. Such hearing and any appeal to the
tax appeals tribunal sitting en banc from the decision rendered in such
hearing shall be conducted in the manner and subject to the requirements
prescribed by the tax appeals tribunal pursuant to sections one hundred
sixty-eight through one hundred seventy-two of the charter of the
preceding municipality as it existed January first, nineteen hundred
ninety-four. After such hearing, the tax appeals tribunal shall give
notice of its decision to the applicant and to the commissioner of
finance. The applicant shall be entitled to review such decision of the
tax appeals tribunal sitting en banc by a proceeding pursuant to article
seventy-eight of the civil practice law and rules, provided such
proceeding is instituted within four months after the giving of the
notice of such decision, and provided, in the case of an application by
a person liable for the tax, that a final determination of tax was not
previously made. Such a proceeding shall not be instituted by a person
liable for the tax unless an undertaking is filed with the commissioner
of finance in such amount and with such sureties as a justice of the
supreme court shall approve to the effect that if such proceeding be
dismissed or the tax confirmed, such person will pay all costs and
charges which may accrue in the prosecution of such proceeding.
c. A person shall not be entitled to a revision, refund or credit
under this section of a tax, interest or penalty which had been deter-
mined to be due pursuant to the provisions of section 11-2506 of this
chapter where he or she has had a hearing or an opportunity for a hear-
ing, as provided in said section, or has failed to avail himself or
herself of the remedies therein provided. No refund or credit shall be
made of a tax, interest or penalty paid after a determination by the
commissioner of finance made pursuant to section 11-2506 of this chapter
unless it be found that such determination was erroneous, illegal or
unconstitutional or otherwise improper, by the tax appeals tribunal
after a hearing or of the commissioner of finance's own motion, or, if
such tax appeals tribunal affirms in whole or in part the determination
of the commissioner of finance, in a proceeding under article seventy-
eight of the civil practice law and rules, pursuant to the provision of
said section, in which event refund or credit without interest shall be
made of the tax, interest or penalty found to have been overpaid.
§ 11-2508 Reserves. In cases where the occupant, operator or room
remarketer has applied for a refund and has instituted a proceeding
under article seventy-eight of the civil practice law and rules to
review a determination adverse to such occupant, operator or room
remarketer on his or her application for refund, the comptroller shall
set up appropriate reserves to meet any decision adverse to the city.
§ 11-2509 Remedies exclusive. The remedies provided by sections
11-2506 and 11-2507 of this chapter shall be the exclusive remedies
available to any person for the review of tax liability imposed by this
chapter; and no determination or proposed determination of tax or deter-
mination on any application for refund by the commissioner of finance,
nor any decision by the tax appeals tribunal or any of its administra-
tive law judges, shall be enjoined or reviewed by an action for declara-
tory judgment, and action for money had and received or by any action or
A. 10030 1102
proceeding other than, in the case of a decision by the tax appeals
tribunal sitting en banc, a proceeding in the nature of a certiorari
proceeding under article seventy-eight of the civil practice law and
rules; provided, however, that a taxpayer may proceed by declaratory
judgment if he or she institutes suit within thirty days after a defi-
ciency assessment is made and pays the amount of the deficiency assess-
ment to the commissioner of finance prior to the institution of such
suit and posts a bond for costs as provided in section 11-2506 of this
chapter.
§ 11-2510 Proceedings to recover tax. a. Whenever any operator or room
remarketer or any officer of a corporate operator or room remarketer or
any occupant or other person shall fail to collect and pay over any tax
and/or to pay any tax, penalty or interest imposed by this chapter as
provided, the corporation counsel shall, upon the request of the commis-
sioner of finance bring or cause to be brought an action to enforce the
payment of the same on behalf of the city of Staten Island in any court
of the state of New York or of any other state or of the United States.
If, however, the commissioner of finance in his or her discretion
believes that any such operator, or room remarketer, officer, occupant
or other person is about to cease business, leave the state or remove or
dissipate the assets out of which the tax, penalties or interest might
be satisfied, and that any such tax, penalty or interest will not be
paid when due, he or she may declare such tax, penalty or interest to be
immediately due and payable and may issue a warrant immediately.
b. As an additional or alternate remedy, the commissioner of finance
may issue a warrant, directed to the city sheriff commanding him or her
to levy upon and sell the real and personal property of the operator or
room remarketer or officer of a corporate operator or room remarketer or
of the occupant or other person liable for the tax, which may be found
within the city for the payment of the amount thereof, with any penal-
ties and interest, and the cost of executing the warrant, and to return
such warrant to the commissioner of finance and to pay to him or her the
money collected by virtue thereof within sixty days after the receipt of
such warrant. The city sheriff shall within five days after the receipt
of the warrant file with the county clerk a copy thereof, and thereupon
such clerk shall enter in the judgment docket the name of the person
mentioned in the warrant and the amount of the tax, penalties and inter-
est for which the warrant is issued and the date when such copy is
filed. Thereupon the amount of such warrant so docketed shall become a
lien upon the title to and interest in real and personal property of the
person against whom the warrant is issued. The city sheriff shall then
proceed upon the warrant, in the same manner, and with like effect, as
that provided by law in respect to executions issued against property
upon judgments of a court of record, and for services in executing the
warrant such sheriff shall be entitled to the same fees, which he or she
may collect in the same manner. In the discretion of the commissioner of
finance a warrant of like terms, force and effect may be issued and
directed to any officer or employee of the department of finance, and in
the execution thereof such officer or employee shall have all the powers
conferred by law upon sheriffs, but shall be entitled to no fee or
compensation in excess of the actual expenses paid in the performance of
such duty. If a warrant is returned not satisfied in full, the commis-
sioner of finance may from time to time issue new warrants and shall
also have the same remedies to enforce the amount due thereunder as if
the city had recovered judgment therefor and execution thereon had been
returned unsatisfied.
A. 10030 1103
c. Whenever an operator shall make a sale, transfer, or assignment in
bulk of any part or the whole of such operator's hotel or of his or her
lease, license or other agreement or right to possess or operate such
hotel, or of the equipment, furnishings, fixtures, supplies or stock of
merchandise, or of the said premises or lease, license or other agree-
ment or right to possess or operate such hotel and the equipment,
furnishings, fixtures, supplies and stock of merchandise pertaining to
the conduct or operation of said hotel, otherwise than in the ordinary
and regular prosecution of business, the purchaser, transferee or assig-
nee shall at least ten days before taking possession of the subject of
said sale, transfer or assignment, or paying therefor, notify the
commissioner of finance by registered mail of the proposed sale and of
the price, terms and conditions thereof whether or not the seller,
transferor or assignor, has represented to, or informed the purchaser,
transferee or assignee that it owes any tax pursuant to this chapter,
and whether or not the purchaser, transferee or assignee has knowledge
that such taxes are owing, and whether any such taxes are in fact owing.
Whenever the purchaser, transferee or assignee shall fail to give
notice to the commissioner of finance as required by the opening para-
graph of this subdivision, or whenever the commissioner of finance shall
inform the purchaser, transferee or assignee that a possible claim for
such tax or taxes exists, any sums of money, property or choses in
action, or other consideration, which the purchaser, transferee or
assignee is required to transfer over to the seller, transferor or
assignor shall be subject to a first priority right and lien for any
such taxes theretofore or thereafter determined to be due from the sell-
er, transferor or assignor to the city, and the purchaser, transferee or
assignee is forbidden to transfer to the seller, transferor or assignor
any such sums of money, property or choses in action to the extent of
the amount of the city's claim. For failure to comply with the
provisions of this subdivision, the purchaser, transferee or assignee,
in addition to being subject to the liabilities and remedies imposed
under the provisions of article six of the uniform commercial code,
shall be personally liable for the payment to the city of any such taxes
theretofore or thereafter determined to be due to the city from the
seller, transferor or assignor, and such liability may be assessed and
enforced in the same manner as the liability for tax under this chapter.
d. The commissioner of finance, if he or she finds that the interests
of the city will not thereby be jeopardized, and upon such conditions as
the commissioner of finance may require, may release any property from
the lien of any warrant or vacate such warrant for unpaid taxes, addi-
tions to tax, penalties and interest filed pursuant to subdivision b of
this section, and such release or vacating of the warrant may be
recorded in the office of any recording officer in which such warrant
has been filed. The clerk shall thereupon cancel and discharge as of the
original date of docketing the vacated warrant.
§ 11-2511 General powers of the commissioner of finance. In addition
to the powers granted to the commissioner of finance in this chapter, he
or she is hereby authorized and empowered:
1. To make, adopt and amend rules and regulations appropriate to the
carrying out of this chapter and the purposes thereof;
2. To extend, for cause shown, the time for filing any return for a
period not exceeding thirty days; and to compromise disputed claims in
connection with the taxes hereby imposed;
3. To request information from the tax commission of the state of New
York or the treasury department of the United States relative to any
A. 10030 1104
person; and to afford information to such tax commission or such treas-
ury department relative to any person, any other provision of this chap-
ter to the contrary notwithstanding;
4. To delegate his or her functions under this section to a commis-
sioner or deputy commissioner in the department of finance or to any
employee or employees of the department of finance;
5. To prescribe methods for determining the rents for occupancy and to
determine the taxable and non-taxable rents;
6. To require any operator within the city to keep detailed records of
the nature and type of hotel maintained and the nature and type of
service rendered, and to require any operator or room remarketer to keep
detailed records of the rooms available and rooms occupied daily, leases
or occupancy contracts or arrangements, rents received, charged and
accrued, the names and addresses of the occupants, whether or not any
occupancy is claimed to be subject to the tax imposed by this chapter,
and to furnish such information upon request to the commissioner of
finance;
7. To assess, determine, revise and readjust the taxes imposed under
this chapter.
§ 11-2512 Administration of oaths and compelling testimony. a. The
commissioner of finance, his or her employees or agents duly designated
and authorized by him or her, the tax appeals tribunal and any of its
duly designated and authorized employees or agents shall have power to
administer oaths and take affidavits in relation to any matter or
proceeding in the exercise of their powers and duties under this chap-
ter. The commissioner of finance and the tax appeals tribunal shall
have power to subpoena and require the attendance of witnesses and the
production of books, papers and documents to secure information perti-
nent to the performance of the duties of the commissioner or the tax
appeals tribunal under this chapter and of the enforcement of this chap-
ter and to examine them in relation thereto, and to issue commissions
for the examination of witnesses who are out of the state or unable to
attend before such commissioner or tax appeals tribunal or excused from
attendance.
b. A justice of the supreme court either in court or at chambers shall
have power summarily to enforce by proper proceedings the attendance and
testimony of witnesses and the production and examination of books,
papers and documents called for by the subpoena of the commissioner of
finance or the tax appeals tribunal under this chapter.
c. Cross-reference; criminal penalties. For failure to obey subpoenas
or for testifying falsely, see section 11-4007 of this title; for
supplying false or fraudulent information, see section 11-4009 of this
title.
d. The officers who serve the summons or subpoena of the commissioner
of finance or the tax appeals tribunal and witnesses attending in
response thereto shall be entitled to the same fees as are allowed to
officers and witnesses in civil cases in courts of record, except as
otherwise provided under this section. Such officers shall be the city
sheriff and his or her duly appointed deputies or any officers or
employees of the department of finance or the tax appeals tribunal,
designated to serve such process.
§ 11-2513 Reference to tax. Whenever reference is made in placards
or advertisements or in any other publication to this tax, such refer-
ence shall be substantially in the following form: "city tax on occupan-
cy of hotel rooms", except that in any bill, receipt, statement or other
A. 10030 1105
evidence or memorandum of occupancy or rent charge issued or employed by
the operator the words "city tax" will suffice.
§ 11-2514 Registration. By June thirtieth, nineteen hundred seventy,
or in the case of operators or room remarketers commencing business or
opening new hotels after such date, within three days after such
commencement or opening, every operator or room remarketer shall file
with the commissioner of finance a certificate of registration in a form
prescribed by the commissioner of finance. The commissioner of finance
shall within five days after such registration issue without charge to
each operator or room remarketer a certificate of authority empowering
such operator or room remarketer to collect the tax from the occupant
and duplicate thereof for each additional hotel of such operator or room
remarketer. Each certificate or duplicate shall state the hotel to
which it is applicable. Such certificates of authority shall be promi-
nently displayed by the operator or room remarketer in such manner that
it may be seen and come to the notice of all occupants and persons seek-
ing occupancy. Such certificates shall be non-assignable and nontrans-
ferable and shall be surrendered immediately to the commissioner of
finance upon the cessation of business at the hotel named or upon its
sale or transfer, or upon cessation of business of the named room
remarketer.
§ 11-2515 Interest and penalties. (a) Interest on underpayments. If
any amount of tax is not paid or paid over on or before the last date
prescribed for payment, without regard to any extension of time granted
for payment, interest on such amount at the rate set by the commissioner
of finance pursuant to subdivision (g) of this section, or, if no rate
is set, at the rate of seven and one-half percent per annum, shall be
paid for the period from such last date to the date of payment. In
computing the amount of interest to be paid, such interest shall be
compounded daily. Interest under this subdivision shall not be paid if
the amount thereof is less than one dollar.
(b) (1) Failure to file return. (A) In case of failure to file a
return under this chapter on or before the prescribed date, determined
with regard to any extension of time for filing, unless it is shown that
such failure is due to reasonable cause and not due to willful neglect,
there shall be added to the amount required to be shown as tax on such
return five percent of the amount of such tax if the failure is for not
more than one month, with an additional five percent for each additional
month or fraction thereof during which such failure continues, not
exceeding twenty-five percent in the aggregate.
(B) In the case of a failure to file a return of tax within sixty days
of the date prescribed for filing of such return, determined with regard
to any extension of time for filing, unless it is shown that such fail-
ure is due to reasonable cause and not due to willful neglect, the addi-
tion to tax under subparagraph (A) of this paragraph shall not be less
than the lesser of one hundred dollars or one hundred percent of the
amount required to be shown as tax on such return.
(C) For purposes of this paragraph, the amount of tax required to be
shown on the return shall be reduced by the amount of any part of the
tax which is paid on or before the date prescribed for payment of the
tax and by the amount of any credit against the tax which may be claimed
upon the return.
(2) Failure to pay tax shown on return. In case of failure to pay the
amount shown as tax on a return required to be filed under this chapter
on or before the prescribed date, determined with regard to any exten-
sion of time for payment, unless it is shown that such failure is due to
A. 10030 1106
reasonable cause and not due to willful neglect, there shall be added to
the amount shown as tax on such return one-half of one percent of the
amount of such tax if the failure is not for more than one month, with
an additional one-half of one percent for each additional month or frac-
tion thereof during which such failure continues, not exceeding twenty-
five percent in the aggregate. For the purpose of computing the addition
for any month the amount of tax shown on the return shall be reduced by
the amount of any part of the tax which is paid on or before the begin-
ning of such month and by the amount of any credit against the tax which
may be claimed upon the return. If the amount of tax required to be
shown on a return is less than the amount shown as tax on such return,
this paragraph shall be applied by substituting such lower amount.
(3) Failure to pay tax required to be shown on return. In case of
failure to pay any amount in respect of any tax required to be shown on
a return required to be filed under this chapter which is not so shown,
including a determination made pursuant to section 11-2506 of this chap-
ter, within ten days of the date of a notice and demand therefor, unless
it is shown that such failure is due to reasonable cause and not due to
willful neglect, there shall be added to the amount of tax stated in
such notice and demand one-half of one percent of such tax if the fail-
ure is not for more than one month, with an additional one-half of one
percent for each additional month or fraction thereof during which such
failure continues, not exceeding twenty-five percent in the aggregate.
For the purpose of computing the addition for any month, the amount of
tax stated in the notice and demand shall be reduced by the amount of
any part of the tax which is paid before the beginning of such month.
(4) Limitations on additions.
(A) With respect to any return, the amount of the addition under para-
graph one of this subdivision shall be reduced by the amount of the
addition under paragraph two of this subdivision for any month to which
an addition applies under both paragraphs one and two. In any case
described in subparagraph (B) of paragraph one of this subdivision, the
amount of the addition under such paragraph one shall not be reduced
below the amount provided in such paragraph.
(B) With respect to any return, the maximum amount of the addition
permitted under paragraph three of this subdivision shall be reduced by
the amount of the addition under paragraph one of this subdivision,
determined without regard to subparagraph (B) of such paragraph one,
which is attributable to the tax for which the notice and demand is made
and which is not paid within ten days of such notice and demand.
(c) Underpayment due to negligence. (1) If any part of an underpayment
of tax is due to negligence or intentional disregard of this chapter or
any rules or regulations related thereto, but without intent to defraud,
there shall be added to the tax a penalty equal to five percent of the
underpayment.
(2) There shall be added to the tax, in addition to the amount deter-
mined under paragraph one of this subdivision, an amount equal to fifty
percent of the interest payable under subdivision (a) of this section
with respect to the portion of the underpayment described in such para-
graph one which is attributable to the negligence or intentional disre-
gard referred to in such paragraph one, for the period beginning on the
last date prescribed by law for payment of such underpayment, determined
without regard to any extension, and ending on the date of the assess-
ment of the tax, or, if earlier, the date of the payment of the tax.
A. 10030 1107
(d) Underpayment due to fraud. (1) If any part of an underpayment of
tax is due to fraud, there shall be added to the tax a penalty equal to
two times of the underpayment.
(2) The penalty under this subdivision shall be in lieu of any other
addition to tax imposed by subdivision (b) or (c) of this section.
(e) Additional penalty. Any person who, with fraudulent intent, shall
fail to pay any tax imposed by this chapter, or to make, render, sign or
certify any return, or to supply any information within the time
required by or under this chapter, shall be liable for a penalty of not
more than one thousand dollars, in addition to any other amounts
required under this chapter to be imposed, assessed and collected by the
commissioner of finance. The commissioner of finance shall have the
power, in his or her discretion, to waive, reduce or compromise any
penalty under this subdivision.
(f) The interest and penalties imposed by this section shall be paid
and disposed of in the same manner as other revenues from this chapter.
Unpaid interest and penalties may be enforced in the same manner as the
tax imposed by this chapter.
(g)(1) Authority to set interest rates. The commissioner of finance
shall set the rate of interest to be paid pursuant to subdivision (a) of
this section, but if no such rate of interest is set, such rate shall be
deemed to be set at seven and one-half percent per annum. Such rate
shall be the rate prescribed in paragraph two of this subdivision but
shall not be less than seven and one-half percent per annum. Any such
rate set by the commissioner of finance shall apply to taxes, or any
portion thereof, which remain or become due on or after the date on
which such rate becomes effective and shall apply only with respect to
interest computed or computable for periods or portions of periods
occurring in the period in which such rate is in effect.
(2) General rule. The rate of interest set under this subdivision
shall be the sum of (i) the federal short-term rate as provided under
paragraph three of this subdivision, plus (ii) seven percentage points.
(3) Federal short-term rate. For purposes of this subdivision:
(A) The federal short-term rate for any month shall be the federal
short-term rate determined by the United States secretary of the treas-
ury during such month in accordance with subsection (d) of section
twelve hundred seventy-four of the internal revenue code for use in
connection with section six thousand six hundred twenty-one of the
internal revenue code. Any such rate shall be rounded to the nearest
full percent, or, if a multiple of one-half of one percent, such rate
shall be increased to the next highest full percent.
(B) Period during which rate applies.
(i) In general. Except as provided in clause (ii) of this subpara-
graph, the federal short-term rate for the first month in each calendar
quarter shall apply during the first calendar quarter beginning after
such month.
(ii) Special rule for the month of September, nineteen hundred eight-
y-nine. The federal short-term rate for the month of April, nineteen
hundred eighty-nine shall apply with respect to setting the rate of
interest for the month of September, nineteen hundred eighty-nine.
(4) Publication of interest rate. The commissioner of finance shall
cause to be published in the City Record, and give other appropriate
general notice of, the interest rate to be set under this subdivision no
later than twenty days preceding the first day of the calendar quarter
during which such interest rate applies. The setting and publication of
such interest rate shall not be included within paragraph (a) of subdi-
A. 10030 1108
vision five of section one thousand forty-one of the city charter of the
preceding municipality as it existed January first, nineteen hundred
ninety-four relating to the definition of a rule.
(h) Miscellaneous. (1) Officers of a corporate operator or room
remarketer and partners in a partnership which is an operator or room
remarketer shall be personally liable for the tax collected or required
to be collected by such corporation or partnership under this chapter,
and subject to the penalties and interest imposed by this section.
(2) The certificate of the commissioner of finance to the effect that
a tax has not been paid, that a return, bond or registration certificate
has not been filed, or that information has not been supplied pursuant
to the provisions of this chapter, shall be presumptive evidence there-
of.
(3) Cross-reference: For criminal penalties, see chapter forty of this
title.
(i) Any person required to make or maintain records under this chapter
who fails to make or maintain or make available to the commissioner
these records is subject to a penalty not to exceed one thousand dollars
for the first quarterly period or part thereof for which the failure
occurs and not to exceed five thousand dollars for each additional quar-
terly period or part thereof for which the failure occurs. This penalty
is in addition to any other penalty provided for in this chapter but may
not be imposed and collected more than once for failures for the same
quarterly period or part thereof. If the commissioner determines that a
failure to make or maintain or make available records in any quarterly
period was entirely due to reasonable cause and not to willful neglect,
the commissioner must remit the penalty imposed for that quarterly peri-
od. These penalties will be paid and disposed of in the same manner as
other revenues from this chapter. These penalties will be determined,
assessed, collected, paid and enforced in the same manner as the tax
imposed by this chapter, and all the provisions of this chapter relating
to tax will be deemed also to apply to the penalties imposed by this
subdivision. For purposes of the penalty imposed by this subdivision, a
person will be considered to have failed to make or maintain the
required records when the commissioner of finance determines that the
records made or maintained by that person for a quarterly period do not
enable the commissioner to verify occupancy or the amounts received for
such occupancy or the taxability of that occupancy and to conduct a
complete audit.
(j) Any person required to make or maintain records under this chapter
who fails to present and make available these records in an auditable
form is subject to a penalty not to exceed one thousand dollars for each
quarterly period or part thereof for which records maintained by that
person are not presented and made available by that person in auditable
form, even if these records are adequate to verify credits, receipts,
and the taxability thereof and to perform a complete audit. This penal-
ty is in addition to any other penalty provided for in this chapter, but
will not be imposed and collected more than once for these failures for
the same quarterly period or part thereof. If the commissioner deter-
mines that any failure described in this subdivision for a quarterly
period was entirely due to reasonable cause and not to willful neglect,
the commissioner must remit the penalty imposed for that quarter. The
penalties imposed by this subdivision will be paid and disposed of in
the same manner as other revenues from this chapter. These penalties
will be determined, assessed, collected, paid and enforced in the same
manner as the tax imposed by this chapter, and all the provisions of
A. 10030 1109
this chapter relating to tax will be deemed also to apply to the penal-
ties imposed by this subdivision. For purposes of the penalty imposed by
this subdivision, a person will be considered to have failed to present
and make records available in auditable form when the records presented
by that person for that quarter lack sufficient organization, such as by
date, invoice number, sales receipts, or sequential numbering, or are
otherwise inadequate, without reorganizing, reordering or otherwise
rearranging the records into an auditable form, to permit direct recon-
ciliation of the receipts, invoices or other source documents with the
entries for the quarterly period in the books and records and on the
returns of that person.
(k) Any person who, having elected to maintain in an electronic format
any portion or all of the records he or she is required to make and
maintain by this chapter, fails to present and make these records avail-
able and accessible to the commissioner in electronic format, is subject
to a penalty not to exceed five thousand dollars for each quarterly
period or part thereof for which these electronic records are not
presented and made available and accessible upon request, notwithstand-
ing that the records may also be maintained and available in hard copy
format. This penalty is in addition to any other penalty provided for in
this chapter, but may not be imposed and collected more than once for a
failure for the same quarterly period or part thereof. Provided, howev-
er, nothing in this subdivision will prevent the separate imposition, if
applicable, of any penalty imposed by subdivision (i) or (j) of this
section for the same quarterly period or part thereof. If the commis-
sioner determines that the failure to present and make electronically
maintained records available and accessible for a quarterly period was
entirely due to reasonable cause and not to willful neglect, the commis-
sioner must remit the penalty imposed for that quarter. These penalties
will be paid and disposed of in the same manner as other revenues from
this chapter. These penalties will be determined, assessed, collected,
paid and enforced in the same manner as the tax imposed by this chapter,
and all the provisions of this chapter relating to tax will be deemed
also to apply to the penalty imposed by this subdivision. For purposes
of the penalty imposed by this subdivision, a failure to present and
make available and accessible a record maintained in electronic format
includes not only the denial of access to the requested records that
were maintained electronically, but also the failure to make available
to the commissioner the information, knowledge, or means necessary to
access and otherwise use the electronically maintained records in the
inspection and examination of these records.
(l) Aiding or assisting in the giving of fraudulent returns, reports,
statements or other documents. Any person who, with the intent that tax
be evaded, for a fee or other compensation or as an incident to the
performance of other services for which that person receives compen-
sation, aids or assists in, or procures, counsels, or advises the prepa-
ration or presentation under this chapter, or in connection with any
matter arising under this chapter, of any return, report, declaration,
statement or other document that is fraudulent or false as to any mate-
rial matter, or supplies any false or fraudulent information, whether or
not such falsity or fraud is with the knowledge or consent of the person
authorized or required to present that return, report, declaration,
statement or other document, will pay a penalty not exceeding five thou-
sand dollars. The definitions in subsection (l) of section one thousand
eighty-five of the tax law apply for the purposes of this penalty.
A. 10030 1110
(m) False or fraudulent document penalty. Any taxpayer that submits a
false or fraudulent document to the department will be subject to a
penalty of one hundred dollars per document submitted, or five hundred
dollars per tax return submitted. This penalty will be in addition to
any other penalty provided by law.
§ 11-2516 Returns to be secret. a. Except in accordance with proper
judicial order, or as otherwise provided by law, it shall be unlawful
for the commissioner of finance, any officer or employee of the depart-
ment of finance, any person engaged or retained on an independent
contract basis, the tax appeals tribunal, any commissioner or employee
of such tribunal, or any person who, pursuant to this section, is
permitted to inspect any return or to whom a copy, an abstract or a
portion of any return is furnished, or to whom any information contained
in any return is furnished, to divulge or make known in any manner the
rents or other information relating to the business of a taxpayer
contained in any return required under this chapter. The officers
charged with the custody of such returns shall not be required to
produce any of them or evidence of anything contained in them in any
action or proceeding in any court, except on behalf of the commissioner
of finance in an action or proceeding under the provisions of this chap-
ter or on behalf of any party to any action or proceeding under the
provisions of this chapter when the returns or facts shown thereby are
directly involved in such action or proceeding, in either of which
events the court may require the production of, and may admit in
evidence, so much of said returns or of the facts shown thereby, as are
pertinent to the action or proceeding and no more. Nothing in this
section shall be construed to prohibit the delivery to a taxpayer or his
or her duly authorized representative of a certified copy of any return
filed in connection with his or her tax; nor to prohibit the delivery of
such a certified copy of such return or of any information contained in
or relating thereto, to the United States of America or any department
thereof, to the state of New York or any department thereof, or to any
agency or department of the city of Staten Island, provided the same is
requested for official business; nor to prohibit the inspection for
official business of such returns by the corporation counsel or other
legal representatives of the city or by the district attorney of any
county within the city; nor to prohibit the publication of statistics so
classified as to prevent the identification of particular returns and
the items thereof. Returns shall be preserved for three years and ther-
eafter until the commissioner of finance permits them to be destroyed.
b. (1) Any officer or employee of the city who willfully violates the
provisions of subdivision a of this section shall be dismissed from
office and be incapable of holding any public office for a period of
five years thereafter.
(2) Cross-reference: For criminal penalties, see chapter forty of this
title.
c. This section shall be deemed a state statute for purposes of para-
graph (a) of subdivision two of section eighty-seven of the public offi-
cers law.
d. Notwithstanding anything in subdivision a of this section to the
contrary, if a taxpayer has petitioned the tax appeals tribunal for
administrative review as provided in section one hundred seventy of the
charter of the preceding municipality as it existed January first, nine-
teen hundred ninety-four, the commissioner of finance shall be author-
ized to present to the tribunal any report or return of such taxpayer,
or any information contained therein or relating thereto, which may be
A. 10030 1111
material or relevant to the proceeding before the tribunal. The tax
appeals tribunal shall be authorized to publish a copy or a summary of
any decision rendered pursuant to section one hundred seventy-one of the
charter of the preceding municipality as it existed January first, nine-
teen hundred ninety-four.
§ 11-2517 Notices and limitations of time. a. Any notice authorized or
required under the provisions of this chapter may be given by mailing
the same to the person for whom it is intended in a postpaid envelope
addressed to such person at the address given in the last return filed
by him or her pursuant to the provisions of this chapter or in any
application made by him or her or, if no return has been filed or appli-
cation made, then to such address as may be obtainable. The mailing of
such notice shall be presumptive evidence of the receipt of the same by
the person to whom addressed. Any period of time which is determined
according to the provisions of this chapter by the giving of notice
shall commence to run from the date of mailing of such notice.
b. The provisions of the civil practice law and rules or any other law
relative to limitations of time for the enforcement of a civil remedy
shall not apply to any proceeding or action taken by the city to levy,
appraise, assess, determine or enforce the collection of any tax or
penalty provided by this chapter. However, except in the case of a
wilfully false or fraudulent return with intent to evade the tax, no
assessment of additional tax shall be made after the expiration of more
than three years from the date of the filing of a return; provided,
however, that where no return has been filed as provided by law the tax
may be assessed at any time.
c. Where, before the expiration of the period prescribed in this
section for the assessment of an additional tax, a taxpayer has
consented in writing that such period be extended, the amount of such
additional tax due may be determined at any time within such extended
period. The period so extended may be further extended by subsequent
consents in writing made before the expiration of the extended period.
d. If any return, claim, statement, notice, application, or other
document required to be filed, or any payment required to be made, with-
in a prescribed period or on or before a prescribed date under authority
of any provision of this chapter is, after such period or such date,
delivered by United States mail to the commissioner of finance, the tax
appeals tribunal, bureau, office, officer or person with which or with
whom such document is required to be filed, or to which or to whom such
payment is required to be made, the date of the United States postmark
stamped on the envelope shall be deemed to be the date of delivery. This
subdivision shall apply only if the postmark date falls within the
prescribed period or on or before the prescribed date for the filing of
such document, or for making the payment, including any extension grant-
ed for such filing or payment, and only if such document or payment was
deposited in the mail, postage prepaid, properly addressed to the
commissioner of finance, the tax appeals tribunal, bureau, office, offi-
cer or person with which or with whom the document is required to be
filed or to which or to whom such payment is required to be made. If any
document is sent by United States registered mail, such registration
shall be prima facie evidence that such document was delivered to the
commissioner of finance, the tax appeals tribunal, bureau, office, offi-
cer or person to which or to whom addressed, and the date of registra-
tion shall be deemed the postmark date. The commissioner of finance and,
where relevant, the tax appeals tribunal are authorized to provide by
regulation the extent to which, such provisions with respect to prima
A. 10030 1112
facie evidence of delivery and the postmark date, shall apply to certi-
fied mail. Except as provided in subdivision f of this section, this
subdivision shall apply in the case of postmarks not made by the United
States postal service only if and to the extent provided by regulation
of the commissioner of finance or, where relevant, the tax appeals
tribunal.
e. When the last day prescribed under authority of this chapter,
including any extension of time, for performing any act falls on a
Saturday, Sunday or legal holiday in the state, the performance of such
act shall be considered timely if it is performed on the next succeeding
day which is not a Saturday, Sunday or legal holiday.
f. (1) Any reference in subdivision d of this section to the United
States mail shall be treated as including a reference to any delivery
service designated by the secretary of the treasury of the United States
pursuant to section seventy-five hundred two of the internal revenue
code and any reference in subdivision d of this section to a United
States postmark shall be treated as including a reference to any date
recorded or marked in the manner described in section seventy-five
hundred two of the internal revenue code by a designated delivery
service. If the commissioner of finance finds that any delivery service
designated by such secretary is inadequate for the needs of the city,
the commissioner of finance may withdraw such designation for purposes
of this title. The commissioner of finance may also designate additional
delivery services meeting the criteria of section seventy-five hundred
two of the internal revenue code for purposes of this title, or may
withdraw any such designation if the commissioner of finance finds that
a delivery service so designated is inadequate for the needs of the
city. Any reference in subdivision d of this section to the United
States mail shall be treated as including a reference to any delivery
service designated by the commissioner of finance and any reference in
subdivision d of this section to a United States postmark shall be
treated as including a reference to any date recorded or marked in the
manner described in section seventy-five hundred two of the internal
revenue code by a delivery service designated by the commissioner of
finance, provided, however any withdrawal of designation or additional
designation by the commissioner of finance shall not be effective for
purposes of service upon the tax appeals tribunal, unless and until such
withdrawal of designation or additional designation is ratified by the
president of the tax appeals tribunal.
(2) Any equivalent of registered or certified mail designated by the
United States secretary of the treasury, or as may be designated by the
commissioner of finance pursuant to the same criteria used by such
secretary for such designations pursuant to section seventy-five hundred
two of the internal revenue code, shall be included within the meaning
of registered or certified mail as used in subdivision d of this
section. If the commissioner of finance finds that any equivalent of
registered or certified mail designated by such secretary or the commis-
sioner of finance is inadequate for the needs of the city, the commis-
sioner of finance may withdraw such designation for purposes of this
title, provided, however, any withdrawal of designation or additional
designation by the commissioner of finance shall not be effective for
purposes of service upon the tax appeals tribunal, unless and until such
withdrawal of designation or additional designation is ratified by the
president of the tax appeals tribunal.
§ 11-2518 Construction and enforcement. This chapter shall be
construed and enforced in conformity with chapter one hundred sixty-one
A. 10030 1113
of the laws of nineteen hundred seventy, as amended by chapter one
hundred sixty-two of the laws of nineteen hundred seventy, pursuant to
which it is enacted.
§ 11-2519 Tourism and convention fund. Notwithstanding any provision
of law to the contrary, with respect to the additional tax imposed at
the rate of six percent on and after September first, nineteen hundred
ninety and before December first, nineteen hundred ninety-four pursuant
to subparagraph (B) of paragraph three of subdivision a of section
11-2502 of this chapter, four and one-sixth percent of the total reven-
ues resulting from the imposition of such tax, including four and one-
sixth percent of any interest or penalties thereon, shall be credited to
and deposited in a special tourism and convention fund, which shall be
used solely for the purpose of promoting tourism and conventions in the
city. Seven-eighths of the moneys in such fund shall be made available
to the New York Convention and Visitor's Bureau, Inc. pursuant to an
annual contract with the city which may specify, among other things, the
services which shall be provided by such bureau with such moneys and the
content and number of reports which will have to be provided by such
bureau to the city concerning the expenditure of such moneys, and
provided that the annual budget and business plan of such bureau is
approved by the mayor of the city or his or her designee. The remaining
one-eighth of the fund shall be spent for promoting tourism and
conventions which may include, at the mayor's discretion, moneys spent
in connection with additional contracts made with the New York Conven-
tion and Visitor's Bureau, Inc. For purposes of this section, the term
"promoting tourism and conventions" shall mean developing, placing and
purchasing advertising promoting the city, and engaging in such other
efforts as are designed to attract tourists and conventions to the city.
CHAPTER 26
TAX ON MORTGAGES
§ 11-2601 Imposition of tax. a. A tax of fifty cents for each one
hundred dollars and each remaining major fraction thereof of principal
debt or obligation which is, or under any contingency may be secured at
the date of execution thereof or at any time thereafter by a mortgage on
real property situated within the city and recorded on or after August
first, nineteen hundred seventy-one and prior to February first, nine-
teen hundred eighty-two, is hereby imposed on each such mortgage and
shall be collected and paid as provided in this chapter. If the princi-
pal debt or obligation which is or by any contingency may be secured by
such mortgage is less than one hundred dollars, a tax of fifty cents is
hereby imposed on such mortgage, and shall be collected and paid as
provided in this chapter.
b. With respect to: (1) one, two or three-family houses, individual
cooperative apartments and individual residential condominium units, and
(2) real property securing a principal debt or obligation of less than
five hundred thousand dollars, a tax of fifty cents, and with respect to
all other real property a tax of one dollar and twelve and one-half
cents, for each one hundred dollars and each remaining major fraction
thereof of principal debt or obligation which is, or under any contin-
gency may be secured at the date of execution thereof or at any time
thereafter by a mortgage on such real property situated within the city
and recorded on or after February first, nineteen hundred eighty-two and
before July first, nineteen hundred eighty-two, is hereby imposed on
each such mortgage and shall be collected and paid as provided in this
A. 10030 1114
chapter. If the principal debt or obligation which is or by any contin-
gency may be secured by such mortgage is less than one hundred dollars,
a tax of one dollar is hereby imposed on such mortgage, and shall be
collected and paid as provided in this chapter.
c. With respect to: (1) real property securing a principal debt or
obligation of less than five hundred thousand dollars, a tax of fifty
cents, (2) with respect to one, two or three-family houses, individual
cooperative apartments and individual residential condominium units
securing a principal debt or obligation of five hundred thousand dollars
or more, a tax of sixty-two and one-half cents, and (3) with respect to
all other real property, a tax of one dollar and twenty-five cents, for
each one hundred dollars and each remaining major fraction thereof of
principal debt or obligation which is, or under any contingency may be
secured at the date of execution thereof or at any time thereafter by a
mortgage on such real property situated within the city and recorded on
or after July first, nineteen hundred eighty-two and before August
first, nineteen hundred ninety, is hereby imposed on each such mortgage
and shall be collected and paid as provided in this chapter. If the
principal debt or obligation which is or by any contingency may be
secured by such mortgage is less than one hundred dollars, a tax of one
dollar is hereby imposed on such mortgage and shall be collected and
paid as provided in this chapter.
d. With respect to: (1) real property securing a principal debt or
obligation of less than five hundred thousand dollars, a tax of one
dollar, (2) with respect to one, two or three-family houses and individ-
ual residential condominium units securing a principal debt or obli-
gation of five hundred thousand dollars or more, a tax of one dollar and
twelve and one-half cents, and (3) with respect to all other real prop-
erty, a tax of one dollar and seventy-five cents, for each one hundred
dollars and each remaining major fraction thereof of principal debt or
obligation which is, or under any contingency may be secured at the date
of execution thereof, or at anytime thereafter by a mortgage on such
real property situated within the city and recorded on or after August
first, nineteen hundred ninety, is hereby imposed on each such mortgage
and shall be collected and paid as provided in this chapter. If the
principal debt or obligation which is or by any contingency may be
secured by such mortgage is less than one hundred dollars, a tax of one
dollar is hereby imposed on such mortgage and shall be collected and
paid as provided in this chapter.
e. (1) For the purpose of determining whether a mortgage is subject to
the tax imposed by subdivision b or c of this section at a rate in
excess of fifty cents, or by subdivision d of this section at a rate in
excess of one dollar, for each one hundred dollars and each remaining
major fraction thereof of principal debt or obligation, the principal
debt or obligation which is or under any contingency may be secured at
the date of execution thereof, or at any time thereafter, by such mort-
gage shall be aggregated with the principal debt or obligation which is
or under any contingency may be secured at the date of execution there-
of, or at any time thereafter, by any other mortgage, where such mort-
gages form part of the same or related transactions and have the same or
related mortgagors. If the commissioner of taxation and finance finds
that a mortgage transaction or mortgage transactions have been formu-
lated for the purpose of avoiding or evading a rate of tax imposed under
this section in excess of the lowest such rate, rather than solely for
an independent business or financial purpose, such commissioner shall
treat all of the mortgages forming part of such transaction or trans-
A. 10030 1115
actions as a single mortgage for the purpose of determining the applica-
ble rate of tax. For the purposes of this subdivision, all mortgages
having the same or related mortgagors offered for recording within a
period of twelve consecutive months shall be presumed to form part of a
related transaction, unless clear and convincing evidence is offered to
the contrary. The commissioner of taxation and finance may require such
affidavits and forms, and may prescribe such rules and regulations, as
he or she determines to be necessary to enforce the provisions of this
subdivision.
(2) The term "related", when used in this subdivision with reference
to mortgagors, shall include, but shall not be limited to, the following
relationships:
(i) members of a family, including spouses, ancestors, lineal descend-
ants, and brothers and sisters, whether by the whole or half blood;
(ii) a shareholder and a corporation more than fifty percent of the
value of the outstanding stock of which is owned or controlled directly
or indirectly by such shareholder;
(iii) a partner and a partnership more than fifty percent of the capi-
tal or profits interest in which is owned or controlled directly or
indirectly by such partner;
(iv) a beneficiary and a trust more than fifty percent of the benefi-
cial interest in which is owned or controlled directly or indirectly by
such beneficiary;
(v) two or more corporations, partnerships, associations, or trusts,
or any combination thereof, which are owned or controlled, either
directly or indirectly, by the same person, corporation or other entity,
or interests; and
(vi) a grantor of a trust and such trust.
f. Notwithstanding any provision to the contrary in paragraph (a) of
subdivision one of section two hundred fifty-five of the tax law, the
taxes imposed by subdivision c or d of this section shall also apply to
principal indebtedness or obligation secured by or which under any
contingency may be secured by a supplemental instrument or additional
mortgage, whether or not there is any new or further indebtedness or
obligation other than the principal indebtedness or obligation secured
by a recorded primary mortgage, where (1) the supplemental instrument or
additional mortgage imposes the lien of a recorded mortgage upon real
property situated within the city not previously subject to the mortgage
or where an additional mortgage upon such additional property is
recorded as additional or substitute security for indebtedness or obli-
gation already secured by a recorded mortgage and (2) the recorded
primary mortgage was on real property outside the city and recorded
without payment of the city tax.
§ 11-2602 Payment and payment over of taxes. The taxes imposed by
this chapter shall be payable on the recording of each mortgage of real
property subject to taxes pursuant to such chapter. Such taxes shall be
paid to the recording officer of the county in which the real property
or any part thereof is situated, except where real property is situated
within and without the city, the recording officer of the county in
which the mortgage is first recorded shall collect the tax imposed by
this chapter, as required by subdivision three of section two hundred
fifty-three-a of the tax law. It shall be the duty of such recording
officer to indorse upon each mortgage a receipt for the amount of the
tax so paid. Any mortgage so endorsed may thereupon or thereafter be
recorded by any recording officer and the receipt for such tax indorsed
upon each mortgage shall be recorded therewith. The record of such
A. 10030 1116
receipt shall be conclusive proof that the amount of tax stated therein
has been paid upon such mortgage. Upon the first day of each month the
city register and the recording officer of Richmond county shall pay
over to the commissioner of finance of the city for credit to the gener-
al fund of such city, the balance of the moneys received during the
preceding month upon account of taxes paid to him or her as prescribed
in this section, after deducting the necessary expenses of his or her
office as provided in section two hundred sixty-two of the tax law,
except taxes paid upon mortgages which are first to be apportioned by
the commissioner of taxation and finance, which taxes and money shall be
paid over by him or her as provided by the determination of the said
commissioner of taxation and finance, provided, however, in each
instance where the tax imposed pursuant to section 11-2601 of this chap-
ter is one dollar and twenty-five cents for each one hundred dollars and
each remaining major fraction thereof of such principal debt or obli-
gation, fifty percent of the total amount of such tax, including fifty
percent of any interest or penalties thereon, shall be set aside in a
special account by the commissioner of finance, and in each instance
where the tax imposed pursuant to that section is one dollar and seven-
ty-five cents for each one hundred dollars and each remaining major
fraction thereof of such principal debt or obligation, thirty-five and
seven-tenths percent of the total amount of such tax, including thirty-
five and seven-tenths percent of any interest or penalties thereon,
shall also be set aside in such special account. Moneys in such account
shall be used for payment by such commissioner to the state comptroller
for deposit in the urban mass transit operating assistance account of
the mass transportation operating assistance fund of any amount of
insufficiency certified by the state comptroller pursuant to the
provisions of subdivision six of section eighty-eight-a of the state
finance law, and on the fifteenth day of each month, such commissioner
shall transmit all funds in such account at the end of the preceding
month, except the amount required for the payment of any amount of
insufficiency certified by the state comptroller and such amount as he
or she deems necessary for refunds and such other amounts necessary to
finance the city transportation disabled committee and the city para-
transit system as established by section fifteen-b of the transportation
law, provided, however, that such amounts shall not exceed six percent
of the total funds in the account but in no event be less than two
hundred twenty-five thousand dollars beginning April first, nineteen
hundred eighty-six, and further that beginning November fifteenth, nine-
teen hundred eighty-four and during the entire period prior to operation
of such system, the total of such amounts shall not exceed three hundred
seventy-five thousand dollars for the administrative expenses of such
committee and fifty thousand dollars for the expenses of the agency
designated pursuant to paragraph b of subdivision five of such section,
and other amounts necessary to finance the operating needs of the
private bus companies franchised by the city of Staten Island and eligi-
ble to receive state operating assistance under section eighteen-b of
the transportation law, provided, however, that such amounts shall not
exceed four percent of the total funds in the account, to the New York
city transit authority for mass transit within the city.
§ 11-2603 Manner of administration and collection. The taxes imposed
under this chapter shall be administered and collected in the same
manner as the taxes imposed under subdivision one of section two hundred
fifty-three and subdivision one of section two hundred fifty-five of the
tax law. All the provisions of article eleven of the tax law relating
A. 10030 1117
to or applicable to the administration and collection of the taxes
imposed by subdivision one of section two hundred fifty-three and subdi-
vision one of section two hundred fifty-five of the tax law shall apply
to the taxes imposed under this chapter with the same force and effect
as if those provisions had been set forth in full in this chapter except
to the extent that any such provision is either inconsistent with a
provision of this chapter or not relevant to the tax imposed by this
chapter. For purposes of this chapter any reference in article eleven
of the tax law to the tax or taxes imposed by such article shall be
deemed to refer to a tax imposed by this chapter, and any reference to
the phrase "within this state" shall be read as "within this city"
unless a different meaning is clearly required. Whenever real property
covered by the mortgage is partly within and partly without the city of
Staten Island, the portion of the mortgage taxable under this chapter
shall be determined in the manner prescribed in the first paragraph of
section two hundred sixty of the tax law where the property without the
city is located within the state and, in the manner prescribed in the
second paragraph of such section of the tax law, where the property
without the city is located without the state.
§ 11-2604 Tax additional. The tax imposed by this chapter shall be
in addition to any taxes imposed by section two hundred fifty-three of
the tax law.
CHAPTER 27
ANNUAL VAULT CHARGE
§ 11-2701 Definitions. When used in this chapter, the following terms
shall mean or include:
1. "Person." An individual, partnership, society, association, joint-
stock company, corporation, estate, receiver, lessee, trustee, assignee,
referee, or any other person acting in a fiduciary or representative
capacity, whether appointed by a court or otherwise, and any combination
of individuals.
2. "Vault." Any subsurface opening, structure or erection, whether or
not wholly or partly covered over, to the extent that it extends from
the building line into any street of the city, for the erection of which
a license fee is required pursuant to the charter of the city or this
code.
3. "Street." Every public street, avenue, road, alley, lane, highway,
boulevard, concourse, parkway, driveway, culvert, sidewalk, crosswalk
and viaduct, and every other class of public highway, road, square and
place within or belonging to the city.
4. "Using, occupying or maintaining." Any right or authority to
install, store or maintain property of any kind in a vault, or otherwise
to use, occupy or maintain such vault for any purpose whatsoever. Such
right or authority shall be deemed to exist wherever a vault has not
been filled in or closed by the licensee or abutting property owner and
the street restored to its original condition pursuant to the require-
ments of the charter of the city or this code.
5. "City surveyor." Any person appointed a surveyor of the city of
Staten Island pursuant to the code of the city.
6. "Owner of the premises immediately adjoining the vault." Any person
who is the owner of record of real property located in whole or in part
within the city, from which a vault has been extended.
7. "Depth." The vertical distance from the ceiling, roof or top of a
vault to the floor, bottom or lowest point thereof.
A. 10030 1118
8. "City." The city of Staten Island.
9. "Comptroller." The comptroller of the city.
10. "Commissioner of finance." The commissioner of finance of the
city.
11. "Return." Any return required to be filed as under this chapter
provided.
12. "Tax appeals tribunal." The tax appeals tribunal established by
section one hundred sixty-eight of the charter of the preceding munici-
pality as it existed January first, nineteen hundred ninety-four.
§ 11-2702 Imposition of charge. (a) In addition to any and all
other license fees, charges and taxes, there is hereby imposed and there
shall be paid an annual vault charge, beginning as of July first, nine-
teen hundred sixty-two, for the privilege of occupying, using or main-
taining a vault in the streets of the city, to be paid by the owner of
the premises immediately adjoining the vault.
(A) For periods prior to July first, nineteen hundred seventy-one such
annual vault charges shall be at the following rates:
1. On any vault occupying up to two hundred and fifty square feet in
plane or surface area but no more than twelve feet in depth, thirty-five
cents per square foot but not less than five dollars for the total occu-
pancy;
2. On any vault occupying more than two hundred fifty square feet in
plane or surface area but not more than twelve feet in depth, thirty-
five cents per square foot for the first two hundred fifty square feet
of an area and sixty cents per square foot for that portion of the area
in excess of two hundred fifty square feet;
3. On any vault more than twelve feet in depth, an additional charge
for each additional ten feet in depth or fraction thereof calculated by
adding the plane or surface area for each such additional depth to the
area calculated pursuant to subparagraphs one and two and by applying to
such total area the same rates as provided in subparagraphs one and two.
The additional area for any additional depth of ten feet or fraction
thereof shall however, be reduced by ten percent for each foot of depth
less than ten feet.
(B) For periods beginning on or after July first, nineteen hundred
seventy-one and ending on or before May thirty-first, nineteen hundred
eighty, such annual vault charges shall be at the following rates:
1. On any vault occupying no more than twelve feet in depth, one
dollar per square foot of plane or surface area but not less than five
dollars for the total occupancy;
2. On any vault more than twelve feet in depth, an additional charge
for each additional ten feet in depth, or fraction thereof calculated by
adding the plane or surface area for each such additional depth to the
area calculated pursuant to subparagraph one of this paragraph and by
applying to such total area the same rate as provided in subparagraph
one of this paragraph. The additional area for any additional depth of
ten feet or fraction thereof shall however, be reduced by ten percent
for each foot of depth less than ten feet.
(C) For periods beginning on or after June first, nineteen hundred
eighty such annual vault charge shall be at the following rates:
1. On any vault occupying no more than twelve feet in depth, two
dollars per square foot of plane or surface area;
2. On any vault more than twelve feet in depth, an additional charge
for each additional ten feet in depth, or fraction thereof calculated by
adding the plane or surface area for each such additional depth to the
area calculated pursuant to subparagraph one of this paragraph and by
A. 10030 1119
applying to such total area the same rate as provided in subparagraph
one of this paragraph. The additional area for any additional depth of
ten feet or fraction thereof shall however, be reduced by ten percent
for each foot of depth less than ten feet.
(D) Notwithstanding any provision of law to the contrary, no annual
vault charge or additional charge shall be imposed pursuant to this
chapter on or after June first, nineteen hundred ninety-eight.
(b) Where the owner of the premises immediately adjoining the vault
is exempt from or otherwise not liable for the annual vault charge, the
tenant, lessee or any other person using, occupying or maintaining such
vault shall be liable therefor.
(c) The annual vault charge imposed by this section shall be due from,
and shall be paid by, the person who is the owner of the premises imme-
diately adjoining the vault on the first day of July of the year for
which such charge is imposed except that, on and after June first, nine-
teen hundred seventy-two, such charge shall be due from, and shall be
paid by the person who is the owner of the premises immediately adjoin-
ing the vault on the first day of June of the year for which such charge
is imposed. Where the annual vault charge is imposed pursuant to subdi-
vision (b) of this section, such annual vault charge shall be due from
and paid by, the tenant, lessee or any other person using, occupying or
maintaining the vault on the first day of July of the year for which
such charge is imposed, except that for years beginning on or after June
first, nineteen hundred seventy-two, such charge shall be due from, and
paid by, the tenant, lessee or any other person using, occupying or
maintaining the vault on the first day of June of the year for which
such charge is imposed.
(d) In the event that the annual vault charge as imposed by this chap-
ter shall be held invalid, then such annual vault charge shall be deemed
a tax on the same basis and at the same rates as provided in this chap-
ter and all other provisions of this chapter shall be equally applica-
ble.
(e) Where, prior to the first day of August in any year in which the
annual vault charge imposed under this chapter shall be due and payable,
if a vault or part thereof is made unavailable for use or occupancy, the
annual vault charge paid for such year, pursuant to the provisions of
this chapter, shall be refunded in full upon application to and furnish-
ing of such proof as the commissioner of finance may require. Where
such closing of a vault occurs prior to the last day of December in any
such year, fifty percent of the annual vault charge due and actually
paid for such year shall be refunded to the payor upon application to
and furnishing of such proof as the commissioner of finance may require.
Where such closing is limited to a part of a vault, such a refund shall
be granted only to the extent that the closing reduces the area of the
vault and thereby the amount of the charge for the vault.
§ 11-2703 Exemptions. The charges imposed by this chapter shall not
apply to the following:
1. The state of New York, or any public corporation, including a
public corporation created pursuant to agreement or compact with another
state or the Dominion of Canada, improvement district or other political
subdivision of the state;
2. The United States of America, insofar as it is immune from taxa-
tion;
3. The United Nations or other world-wide international organizations
of which the United States of America is a member;
A. 10030 1120
4. Any corporation, or association, or trust, or community chest, fund
or foundation, organized and operated exclusively for religious, chari-
table, or educational purposes, or for the prevention of cruelty to
children or animals, and no part of the net earnings of which inures to
the benefit of any private shareholder or individual and no substantial
part of the activities of which is carrying on propaganda, or otherwise
attempting to influence legislation; provided, however, that nothing in
this subdivision shall include an organization operated for the primary
purpose of carrying on a trade or business for profit, whether or not
all of its profits are payable to one or more organizations described in
this subdivision.
5. Any vault constituting property defined as a special franchise in
section one hundred two of the real property tax law or assessed as such
pursuant to article six of such law.
6. Any vault to the extent that it is used, occupied or maintained
pursuant to a revocable consent granted pursuant to section three
hundred seventy-four of the charter of the preceding municipality as it
existed January first, nineteen hundred ninety-four.
7. Any vault immediately adjoining a building or structure designed
for and used exclusively as a single-family or a two-family dwelling
house or any other real property which is classified as class one real
property pursuant to section eighteen hundred two of the real property
tax law.
8. Any street occupancy usable solely and exclusively for the melting
of snow and ice, or for delivery into the immediately adjoining prem-
ises, of coal, oil or other fuel for the heating thereof.
9. Any vault occupying no more than thirty-six square feet in plane or
surface area, irrespective of the depth of such vault.
§ 11-2704 Filing of returns. a. Every person subject to the annual
vault charge under this chapter shall, on or before the first day of
August, nineteen hundred sixty-two, and on or before the fifteenth day
of July of every year thereafter, file with the commissioner of finance
a return showing the dimensions of the vault as to length, width and
depth, except that the return required to be filed on or before July
fifteenth, nineteen hundred seventy-two shall be filed on or before June
fifteenth, nineteen hundred seventy-two and those due in later years
shall be required to be filed on or before June fifteenth of such years.
The commissioner of finance, if he or she deems it necessary to insure
adequate information with regard to the proper charge to be imposed, may
require information returns from other persons, including the owners of
real property regardless of whether a vault has been extended therefrom,
the users or lessees of the vault or lessees or tenants of the property
adjoining the vault.
b. The forms of returns shall be prescribed by the commissioner of
finance and shall contain such information as he or she may deem neces-
sary for the proper administration of this chapter; and the commissioner
of finance or his or her duly authorized agents or employees shall be
empowered to require supplemental returns. If a return required by this
chapter is not filed or if the return when filed is incorrect or insuf-
ficient on its face, the commissioner of finance shall take the neces-
sary steps to enforce the filing of such a return or of a corrected
return. Upon failure to comply with a notice to furnish a return or a
sufficient return, the commissioner of finance may require the filing of
a certificate signed by a city surveyor specifying the dimensions of the
vault.
A. 10030 1121
c. For each annual vault charge year beginning on or after June first,
nineteen hundred eighty-nine, the commissioner of finance shall, at
least thirty days prior to the commencement of such year, mail to each
person who has filed an annual vault charge return for the immediately
preceding year an annual vault charge return form on which shall be
shown the amount of the charge for such immediately preceding year. Such
return form shall be accompanied by instructions which explain in clear
and simple terms how to determine the dimensions and extent of street
occupancy of a vault, how to calculate the amount of the charge, and
such other matters as the commissioner considers necessary or helpful to
an understanding of the requirements of this chapter, provided, however,
neither the failure of the commissioner to mail such return form and
instructions nor the failure of any person to receive the same shall
relieve any person of the obligation to file any return required under
this section or of liability for the charge, interest or penalties
imposed by this chapter.
d. If no form or other notice has previously been sent to a person
subject to the annual vault charge with respect to the amount of vault
charge owed for any year, the commissioner of finance shall notify such
person of the amount owed as soon as practicable after discovering that
such amount is owed.
§ 11-2705 Payment of vault charges. a. At the time of filing a return
as required by this chapter the person subject to the annual vault
charge shall pay to the commissioner of finance the charge imposed by
this chapter. Such charge shall be due and payable on the last day on
which such return is required to be filed, without regard to whether a
return is filed or whether the return which is filed correctly shows the
amount due.
b. The charge otherwise required to be paid with the return due on or
before June fifteenth, nineteen hundred eighty shall be paid in two
equal installments as follows: one-half of the charge shall be paid with
the return on or before June fifteenth, nineteen hundred eighty, and
one-half of the charge shall be paid on or before September fifteenth,
nineteen hundred eighty.
§ 11-2706 Presumption and burden of proof. For the purpose of the
proper administration of this chapter and to prevent evasion of the
annual vault charge hereby imposed, it shall be presumed, except where
the depth of a vault exceeds twelve feet, that the size of the vault as
indicated upon the license therefor originally issued by the former
borough president of Staten Island up to and including December thirty-
first, nineteen hundred sixty-two, and the commissioner of transporta-
tion thereafter is a proper measure of the charge until the contrary is
established, and the burden of proving that the size of the vault is not
accurately stated upon the license shall be upon the person so claiming.
In cases where no license of record has been issued for a vault or where
the depth of a vault exceeds twelve feet, the burden of proving the
actual size of the vault shall be upon the person liable for the vault
charge.
§ 11-2707 Determination of vault charge. If a return required by this
chapter is not filed or if a return when filed is incorrect or insuffi-
cient, the amount of the vault charge due shall be determined by the
commissioner of finance from such information as may be obtainable and,
if necessary, the charge may be estimated on the basis of external
indices, including but not limited to the records of the department of
transportation, the reports of tax assessors, the reports of inspectors
and investigators in the offices of the commissioner of finance and
A. 10030 1122
commissioner of transportation, or other information or factors. Notice
of such determination shall be given to the person liable for the
payment thereof. Such determination shall finally and irrevocably fix
the vault charge unless the person against whom it is assessed shall,
within ninety days after the giving of notice of such determination, or,
if the commissioner of finance has established a conciliation procedure
pursuant to section 11-124 of the code of the preceding municipality and
such person has requested a conciliation conference in accordance there-
with, within ninety days from the mailing of a conciliation decision or
the date of the commissioner's confirmation of the discontinuance of the
conciliation proceeding, both (1) serves a petition upon the commission-
er of finance and (2) files a petition with the tax appeals tribunal, or
unless the commissioner of finance of his or her own motion shall rede-
termine the same. Upon such hearing the tax appeals tribunal may
require the filing of a certificate signed by a city surveyor specifying
the dimensions of the vault. After such hearing the tax appeals tribu-
nal shall give notice of its decision to the person against whom the
vault charge is assessed. A decision of the tax appeals tribunal
sitting en banc shall be reviewable for error, illegality or unconstitu-
tionality or any other reason whatsoever by a proceeding under article
seventy-eight of the civil practice law and rules if application there-
for is made to the supreme court by the person against whom the vault
charge was assessed within four months after the giving of the notice of
such tax appeals tribunal decision. A proceeding under article seventy-
eight of the civil practice law and rules shall not be instituted by a
person against whom the vault charge is assessed unless (a) the amount
of any vault charge sought to be reviewed, with penalties and interest
thereon, if any, shall be first deposited with the commissioner of
finance and there shall be filed with the commissioner of finance an
undertaking in such amount and with such sureties as a justice of the
supreme court shall approve, to the effect that if such proceeding be
dismissed or the vault charge confirmed the person against whom the
vault charge is assessed will pay all costs and charges which may accrue
in the prosecution of the proceeding, or (b) at the option of such
person, such undertaking filed with the commissioner of finance may be
in a sum sufficient to cover the vault charge, penalties and interest
thereon stated in such decision plus the costs and charges which may
accrue against him or her in the prosecution of the proceeding, in which
event such person shall not be required to deposit such vault charge,
penalties and interest as a condition precedent to the application.
§ 11-2708 Refunds. a. In the manner provided in this section, the
commissioner of finance shall refund or credit, without interest, any
vault charge, penalty or interest erroneously, illegally or unconstitu-
tionally collected or paid if application to the commissioner of finance
for such refund shall be made within one year from the payment thereof.
Whenever a refund is made or denied by the commissioner of finance, he
or she shall state his or her reason therefor and give notice thereof to
the applicant in writing. Such application may be made by the owner of
the premises, or other person, who has actually paid the vault charge.
The commissioner of finance may, in lieu of any refund required to be
made, allow credit therefor on payments due from the applicant.
b. Any determination of the commissioner of finance denying a refund
or credit pursuant to subdivision a of this section shall be final and
irrevocable unless the applicant for such refund or credit, within nine-
ty days from the mailing of notice of such determination, or, if the
commissioner of finance has established a conciliation procedure pursu-
A. 10030 1123
ant to section 11-124 of the code of the preceding municipality and the
applicant has requested a conciliation conference in accordance there-
with, within ninety days from the mailing of a conciliation decision or
the date of the commissioner's confirmation of the discontinuance of the
conciliation proceeding, both (1) serves a petition upon the commission-
er of finance and (2) files a petition with the tax appeals tribunal for
a hearing. Such petition for a refund or credit, made as provided in
this section, shall be deemed an application for a revision of any vault
charge, penalty or interest complained of. Such hearing and any appeal
to the tax appeals tribunal sitting en banc from the decision rendered
in such hearing shall be conducted in the manner and subject to the
requirements prescribed by the tax appeals tribunal pursuant to sections
one hundred sixty-eight through one hundred seventy-two of the charter
of the preceding municipality as it existed January first, nineteen
hundred ninety-four. After such hearing, the tax appeals tribunal shall
give notice of its decision to the applicant and to the commissioner of
finance. The applicant shall be entitled to review such decision of the
tax appeals tribunal sitting en banc by a proceeding pursuant to article
seventy-eight of the civil practice law and rules, provided such
proceeding is instituted within four months after the giving of the
notice of such decision, and provided, in the case of an application by
a person against whom the vault charge is assessed, that a final deter-
mination of the vault charge due was not previously made. Such a
proceeding shall not be instituted by a person against whom the vault
charge is assessed unless an undertaking is filed with the commissioner
of finance in such amount and with such sureties as a justice of the
supreme court shall approve to the effect that if such proceeding be
dismissed or the vault charge confirmed, such person will pay all costs
and charges which may accrue in the prosecution of such proceeding.
c. A person shall not be entitled to a revision, refund or credit
under this section of a vault charge, interest or penalty which had been
determined to be due pursuant to the provisions of section 11-2707 of
this chapter where he or she has had a hearing or an opportunity for a
hearing, as provided in said section, or has failed to avail himself or
herself of the remedies therein provided. No refund or credit shall be
made of annual vault charge, interest or penalty paid after a determi-
nation by the commissioner of finance made pursuant to section 11-2707
of this chapter unless it be found that such determination was errone-
ous, illegal or unconstitutional or otherwise improper, by the tax
appeals tribunal after a hearing or on the commissioner's own motion,
or, if such tax appeals tribunal affirms in whole or in part the deter-
mination of the commissioner of finance, in a proceeding under article
seventy-eight of the civil practice law and rules, pursuant to the
provisions of said section, in which event refund or credit without
interest shall be made of the vault charge, interest or penalty found to
have been overpaid.
§ 11-2709 Reserves. In cases where the person or persons liable for
the vault charge imposed by this chapter has applied for a refund and
has instituted a proceeding under article seventy-eight of the civil
practice law and rules to review a determination adverse to him or her
on his or her application for refund, the comptroller shall set up
appropriate reserves to meet any decision adverse to the city.
§ 11-2710 Remedies exclusive. The remedies provided by sections
11-2707 and 11-2708 of this chapter shall be the exclusive remedies
available to any person for the review of the liability imposed under
this chapter, and no determination or proposed determination of an annu-
A. 10030 1124
al vault charge or determination on any application for refund by the
commissioner of finance, nor any decision by the tax appeals tribunal or
any of its administrative law judges, shall be enjoined or reviewed by
an action for declaratory judgment, an action for money had and received
or by any action or proceeding other than, in the case of a decision by
the tax appeals tribunal sitting en banc, a proceeding in the nature of
a certiorari proceeding under article seventy-eight of the civil prac-
tice law and rules; provided, however, that a person liable for the
annual vault charge may proceed by declaratory judgment if he or she
institutes suit within thirty days after a deficiency assessment is made
and pays the amount of the deficiency assessment to the commissioner of
finance prior to the institution of such suit and posts a bond for costs
as provided in section 11-2707 of this chapter.
§ 11-2711 Proceedings to recover annual vault charge. a. Whenever any
person shall fail to pay any vault charge, penalty or interest imposed
by this chapter as provided in this chapter, the corporation counsel
shall, upon the request of the commissioner of finance bring, or cause
to be brought, an action to enforce the payment of the same on behalf of
the city of Staten Island in any court of the state of New York or of
any other state or of the United States.
b. As an additional remedy or as an alternate remedy, the commissioner
of finance may issue a warrant, directed to the city sheriff, commanding
him or her to levy upon and sell the real and personal property of the
person liable for vault charges which may be found within the city for
the payment of the amount thereof, with any penalties and interest, and
the cost of executing the warrant, and to return such warrant to the
commissioner of finance and to pay to him or her the money collected by
virtue thereof within sixty days after the receipt of such warrant. The
city sheriff shall within five days after the receipt of the warrant
file with the county clerk a copy thereof, and thereupon such clerk
shall enter in the judgment docket the name of the person mentioned in
the warrant and the amount of the vault charge, penalty and interest for
which the warrant is issued and the date when such copy is filed. Ther-
eupon the amount of such warrant so docketed shall become a lien upon
the title to and interest in real and personal property of the person
against whom the warrant is issued. The city sheriff shall then proceed
upon the warrant in the same manner, and with like effect, as that
provided by law in respect to executions issued against property upon
judgments of a court of record and for services in executing the warrant
he or she shall be entitled to the same fees, which he or she may
collect in the same manner. In the discretion of the commissioner of
finance a warrant of like terms, force and effect may be issued and
directed to an officer or employee of the department of finance, and in
the execution thereof such officer or employee shall have all the powers
conferred by law upon sheriffs, but shall be entitled to no fee or
compensation in excess of the actual expenses paid in the performance of
such duty. If a warrant is returned not satisfied in full, the commis-
sioner of finance may from time to time issue new warrants and shall
also have the same remedies to enforce the amount due thereunder as if
the city had recovered judgment therefor and execution thereon had been
returned unsatisfied.
c. In addition to any other lien provided for in this section, the
annual vault charge imposed by this chapter shall become a lien, binding
upon the premises immediately adjoining such vault, on the date such
charge is required to be paid until the same is paid in full.
A. 10030 1125
d. The commissioner of finance, if he or she finds that the interests
of the city will not thereby be jeopardized, and upon such conditions as
the commissioner of finance may require, may release any property from
the lien of any warrant or vacate such warrant for unpaid vault charges,
additions to vault charges, penalties and interest filed pursuant to
subdivision b of this section, and such release or vacating of the
warrant may be recorded in the office of any recording officer in which
such warrant has been filed. The clerk shall thereupon cancel and
discharge as of the original date of docketing the vacated warrant.
§ 11-2712 General powers of the commissioner of finance. In addition
to all other powers granted to the commissioner of finance in this chap-
ter, he or she is hereby authorized and empowered:
1. To make, adopt and amend rules and regulations appropriate to the
carrying out of this chapter and the purpose thereof;
2. To extend, for cause shown, the time for filing any return for a
period not exceeding sixty days; and to compromise disputed claims in
connection with the vault charges imposed under this chapter;
3. To delegate his or her functions under this chapter to a deputy
commissioner of finance or any employee or employees of the department
of finance;
4. To prescribe methods for determining the size, dimensions, depth
and extent of street occupancy of a vault; to set forth the manner of
computing the vault charges under this chapter; to prescribe standards
or methods, by regulation or otherwise, for determining whether a vault
has been made unavailable for use or occupancy; and the commissioner of
finance or his or her designated employees or agents shall have power to
inspect premises for the purpose of determining the extent, if any, of
liability imposed by this chapter.
5. To require any owner of premises or licensee or other person using,
occupying or maintaining a vault to obtain from the commissioner of
finance a certificate stating the dimensions and depth of the vault and
that the vault charge thereon has been paid and to exhibit the same to
duly authorized employees at the premises or real property adjoining the
said vault, and to keep such records, and for such length of time, as
may be required for the proper administration of this chapter, and to
furnish such records to the commissioner of finance upon request;
6. To assess, reassess, determine, revise and readjust the vault
charges imposed under this chapter;
7. Where he or she has exercised his or her authorized power to
require the filing of a certificate signed by a city surveyor specifying
the dimensions of a vault and the owner of the premises has failed to
comply, he or she may obtain such certificate and, in such situation,
the necessary expense of obtaining such certificate shall constitute a
lien against such premises until paid.
8. The commissioner of finance or his or her designated employees or
agents shall have power to inspect premises for the purpose of determin-
ing the extent, if any, of liability imposed by this chapter.
§ 11-2713 Administration of oaths and compelling testimony. a. The
commissioner of finance, his or her employees duly designated and
authorized by the commissioner, the tax appeals tribunal and any of its
duly designated and authorized employees shall have power to administer
oaths and take affidavits in relation to any matter or proceeding in the
exercise of their powers and duties under this chapter. The commissioner
of finance and the tax appeals tribunal shall have power to subpoena and
require the attendance of witnesses and the production of books, papers
and documents to secure information pertinent to the performance of the
A. 10030 1126
duties of the commissioner or of the tax appeals tribunal under this
chapter and of the enforcement of this chapter and to examine them in
relation thereto, and to issue commissions for the examination of
witnesses who are out of the state or unable to attend before such
commissioner or the tax appeals tribunal or excused from attendance.
b. A justice of the supreme court either in court or at chambers shall
have power summarily to enforce by proper proceedings the attendance and
testimony of witnesses and the production and examination of books,
papers and documents called for by the subpoena of the commissioner of
finance or the tax appeals tribunal under this chapter.
c. Cross-reference; criminal penalties. For failure to obey subpoenas
or for testifying falsely, see section 11-4007 of this title; for
supplying false or fraudulent information, see section 11-4009 of this
title.
d. The officers who serve the summons or subpoena of the commissioner
of finance or the tax appeals tribunal under this chapter and witnesses
attending in response thereto shall be entitled to the same fees as are
allowed to officers and witnesses in civil cases in courts of record,
except as otherwise provided under this chapter. Such officers shall be
the city sheriff and his or her duly appointed deputies or any officers
or employees of the department of finance or the tax appeals tribunal,
designated to serve such process.
§ 11-2714 Interest and penalties. (a) Interest on underpayments. If
any annual vault charge is not paid on or before the last date
prescribed for payment, without regard to any extension of time granted
for payment, interest on such amount at the rate set by the commissioner
of finance pursuant to subdivision (g) of this section, or, if no rate
is set, at the rate of seven and one-half percent per annum, shall be
paid for the period from such last date to the date of payment. In
computing the amount of interest to be paid, such interest shall be
compounded daily. Interest under this subdivision shall not be paid if
the amount thereof is less than one dollar.
(b) (1) Failure to file return. (A) In case of failure to file a
return under this chapter on or before the prescribed date, determined
with regard to any extension of time for filing, unless it is shown that
such failure is due to reasonable cause and not due to willful neglect,
there shall be added to the amount required to be shown as vault charge
on such return five percent of the amount of such charge if the failure
is for not more than one month, with an additional five percent for each
additional month or fraction thereof during which such failure contin-
ues, not exceeding twenty-five percent in the aggregate.
(B) In the case of a failure to file a vault charge return within
sixty days of the date prescribed for filing of such return, determined
with regard to any extension of time for filing, unless it is shown that
such failure is due to reasonable cause and not due to willful neglect,
the addition to the vault charge under subparagraph (A) of this para-
graph shall not be less than the lesser of one hundred dollars or one
hundred percent of the amount required to be shown as vault charge on
such return.
(C) For purposes of this paragraph, the amount of vault charge
required to be shown on the return shall be reduced by the amount of any
part of the charge which is paid on or before the date prescribed for
payment of the charge and by the amount of any credit against the charge
which may be claimed upon the return.
(2) Failure to pay vault charge shown on return. In case of failure to
pay the amount shown as vault charge on a return required to be filed
A. 10030 1127
under this chapter on or before the prescribed date, determined with
regard to any extension of time for payment, unless it is shown that
such failure is due to reasonable cause and not due to willful neglect,
there shall be added to the amount shown as vault charge on such return
one-half of one percent of the amount of such charge if the failure is
not for more than one month, with an additional one-half of one percent
for each additional month or fraction thereof during which such failure
continues, not exceeding twenty-five percent in the aggregate. For the
purpose of computing the addition for any month the amount of vault
charge shown on the return shall be reduced by the amount of any part of
the charge which is paid on or before the beginning of such month and by
the amount of any credit against the charge which may be claimed upon
the return. If the amount of vault charge required to be shown on a
return is less than the amount shown as such charge on such return, this
paragraph shall be applied by substituting such lower amount.
(3) Failure to pay vault charge required to be shown on return. In
case of failure to pay any amount in respect of any vault charge
required to be shown on a return required to be filed under this chapter
which is not so shown, including a determination made pursuant to
section 11-1106 of this title, within ten days of the date of a notice
and demand therefor, unless it is shown that such failure is due to
reasonable cause and not due to willful neglect, there shall be added to
the amount of vault charge stated in such notice and demand one-half of
one percent of such charge if the failure is not for more than one
month, with an additional one-half of one percent for each additional
month or fraction thereof during which such failure continues, not
exceeding twenty-five percent in the aggregate. For the purpose of
computing the addition for any month, the amount of vault charge stated
in the notice and demand shall be reduced by the amount of any part of
the charge which is paid before the beginning of such month.
(4) Limitations on additions.
(A) With respect to any return, the amount of the addition under para-
graph one of this subdivision shall be reduced by the amount of the
addition under paragraph two of this subdivision for any month to which
an addition applies under both paragraphs one and two. In any case
described in subparagraph (B) of paragraph one of this subdivision, the
amount of the addition under such paragraph one shall not be reduced
below the amount provided in such subparagraph.
(B) With respect to any return, the maximum amount of the addition
permitted under paragraph three of this subdivision shall be reduced by
the amount of the addition under paragraph one of this subdivision,
determined without regard to subparagraph (B) of such paragraph one,
which is attributable to the charge for which the notice and demand is
made and which is not paid within ten days of such notice and demand.
(c) Underpayment due to negligence. (1) If any part of an underpayment
of a vault charge is due to negligence or intentional disregard of this
chapter or any rules or regulations pursuant thereto, but without intent
to defraud, there shall be added to the charge a penalty equal to five
percent of the underpayment.
(2) There shall be added to the charge, in addition to the amount
determined under paragraph one of this subdivision, an amount equal to
fifty percent of the interest payable under subdivision (a) of this
section with respect to the portion of the underpayment described in
such paragraph one which is attributable to the negligence or inten-
tional disregard referred to in such paragraph one, for the period
beginning on the last date prescribed by law for payment of such under-
A. 10030 1128
payment, determined without regard to any extension, and ending on the
date of the assessment of the charge, or, if earlier, the date of the
payment of the charge.
(d) Underpayment due to fraud. (1) If any part of an underpayment of a
vault charge is due to fraud, there shall be added to the charge a
penalty equal to fifty percent of the underpayment.
(2) There shall be added to the charge, in addition to the penalty
determined under paragraph one of this subdivision, an amount equal to
fifty percent of the interest payable under subdivision (a) of this
section with respect to the portion of the underpayment described in
such paragraph one which is attributable to fraud, for the period begin-
ning on the last day prescribed by law for payment of such underpayment,
determined without regard to any extension, and ending on the date of
the assessment of the charge, or, if earlier, the date of the payment of
the charge.
(3) The penalty under this subdivision shall be in lieu of any other
addition to the vault charge imposed by subdivision (b) or (c) of this
section.
(e) Additional penalty. Any person who, with fraudulent intent, shall
fail to pay any vault charge imposed by this chapter, or to make,
render, sign or certify any return, or to supply any information within
the time required by or under this chapter, shall be liable for a penal-
ty of not more than one thousand dollars, in addition to any other
amounts required under this chapter to be imposed, assessed and
collected by the commissioner of finance. The commissioner of finance
shall have the power, in his or her discretion, to waive, reduce or
compromise any penalty under this subdivision.
(f) The interest and penalties imposed by this section shall be paid
and disposed of in the same manner as other revenues from this chapter.
Unpaid interest and penalties may be enforced in the same manner as the
vault charge imposed by this chapter.
(g)(1) Authority to set interest rates. The commissioner of finance,
shall set the rate of interest to be paid pursuant to subdivision (a) of
this section, but if no such rate of interest is set, such rate shall be
deemed to be set at seven and one-half percent per annum. Such rate
shall be the rate prescribed in paragraph two of this subdivision but
shall not be less than seven and one-half percent per annum. Any such
rate set by the commissioner of finance shall apply to vault charges, or
any portion thereof, which remain or become due on or after the date on
which such rate becomes effective and shall apply only with respect to
interest computed or computable for periods or portions of periods
occurring in the period in which such rate is in effect.
(2) General rule. The rate of interest set under this subdivision
shall be the sum of (i) the federal short-term rate as provided under
paragraph three of this subdivision, plus (ii) five percentage points.
(3) Federal short-term rate. For purposes of this subdivision:
(A) The federal short-term rate for any month shall be the federal
short-term rate determined by the United States secretary of the treas-
ury during such month in accordance with subsection (d) of section
twelve hundred seventy-four of the internal revenue code for use in
connection with section six thousand six hundred twenty-one of the
internal revenue code. Any such rate shall be rounded to the nearest
full percent, or, if a multiple of one-half of one percent, such rate
shall be increased to the next highest full percent.
(B) Period during which rate applies.
A. 10030 1129
(i) In general. Except as provided in clause (ii) of this subpara-
graph, the federal short-term rate for the first month in each calendar
quarter shall apply during the first calendar quarter beginning after
such month.
(ii) Special rule for the month of September, nineteen hundred eight-
y-nine. The federal short-term rate for the month of April, nineteen
hundred eighty-nine shall apply with respect to setting the rate of
interest for the month of September, nineteen hundred eighty-nine.
(4) Publication of interest rate. The commissioner of finance shall
cause to be published in the City Record, and give other appropriate
general notice of, the interest rate to be set under this subdivision no
later than twenty days preceding the first day of the calendar quarter
during which such interest rate applies. The setting and publication of
such interest rate shall not be included within paragraph (a) of subdi-
vision five of section one thousand forty-one of the city charter of the
preceding municipality as it existed January first, nineteen hundred
ninety-four relating to the definition of a rule.
(h) Miscellaneous. (1) The certificate of the commissioner of finance
to the effect that a vault charge has not been paid, that a vault has
not been licensed, that a return has not been filed, that access has not
been allowed, or that information has not been supplied pursuant to the
provisions of this chapter, shall be presumptive evidence thereof.
(2) Cross-reference: For criminal penalties, see chapter forty of this
title.
§ 11-2715 Notices and limitations of time. a. Any notice authorized
or required under the provisions of this chapter may be given to the
person for whom it is intended by mailing it in a postpaid envelope
addressed to such person at the address given in the return filed by him
or her pursuant to the provisions of this chapter or in any application
made by him or her or, if no such return has been filed or application
made, then to the address of the premises immediately adjoining the
vault. The mailing of a notice as in this subdivision provided, shall
be presumptive evidence of the receipt of the same by the person to whom
addressed. Any period of time which is determined according to the
provisions of this chapter by the giving of notice shall commence to run
from the date of mailing of such notice as in this subdivision provided.
b. The provisions of the civil practice law and rules or any other law
relative to limitations of time for the enforcement of a civil remedy
shall not apply to any proceeding or action taken by the city to
appraise, assess, determine, levy or enforce the collection of any vault
charge or penalty provided by this chapter. However, except in the case
of a wilfully false or fraudulent return with intent to evade the vault
charge, no assessment shall be made after the expiration of more than
three years from the date of such return; provided, however, that where
no return has been filed as provided by law, the annual vault charge may
be assessed at any time.
c. Where, before the expiration of the period prescribed in this
section for the assessment of an additional vault charge, a person has
consented in writing that such period be extended, the amount of such
additional vault charge due may be determined at any time within such
extended period. The period so extended may be further extended by
subsequent consents in writing made before the expiration of the
extended period.
d. If any return, claim, statement, notice, application, or other
document required to be filed, or any payment required to be made, with-
in a prescribed period or on or before a prescribed date under authority
A. 10030 1130
of any provision of this chapter is, after such period or such date,
delivered by United States mail to the commissioner of finance, the tax
appeals tribunal, bureau, office, officer or person with which or with
whom such document is required to be filed, or to which or to whom such
payment is required to be made, the date of the United States postmark
stamped on the envelope shall be deemed to be the date of delivery.
This subdivision shall apply only if the postmark date falls within the
prescribed period or on or before the prescribed date for the filing of
such document, or for making the payment, including any extension grant-
ed for such filing or payment, and only if such document or payment was
deposited in the mail, postage prepaid, properly addressed to the
commissioner of finance, the tax appeals tribunal, bureau, office, offi-
cer or person with which or with whom the document is required to be
filed or to which or to whom such payment is required to be made. If any
document is sent by United States registered mail, such registration
shall be prima facie evidence that such document was delivered to the
commissioner of finance, the tax appeals tribunal, bureau, office, offi-
cer or person to which or to whom addressed, and the date of registra-
tion shall be deemed the postmark date. The commissioner of finance and,
where relevant, the tax appeals tribunal are authorized to provide by
regulation the extent to which, such provisions with respect to prima
facie evidence of delivery and the postmark date, shall apply to certi-
fied mail. This subdivision shall apply in the case of postmarks not
made by the United States postal service only if and to the extent
provided by regulation of the commissioner of finance or, where rele-
vant, the tax appeals tribunal.
e. When the last day prescribed under authority of this chapter,
including any extension of time, for performing any act falls on a
Saturday, Sunday or legal holiday in the state, the performance of such
act shall be considered timely if it is performed on the next succeeding
day which is not a Saturday, Sunday or legal holiday.
§ 11-2715.1 Vault charge amnesty program. a. Notwithstanding any other
provision of law to the contrary, there is hereby established a nine-
month amnesty program, beginning January first, nineteen hundred eight-
y-nine and ending September thirtieth, nineteen hundred eighty-nine
(hereinafter referred to as the "amnesty period"), for all persons owing
the annual vault charge imposed by this chapter. Such amnesty program
shall be administered by the commissioner of finance and shall apply to
liabilities for annual vault charge years ending prior to June first,
nineteen hundred eighty-nine.
b. (1) A person seeking amnesty pursuant to this section must, during
the amnesty period, file a written application therefor with the commis-
sioner of finance, on a form prescribed by the commissioner, and must
provide such information as the commissioner may require. In order to
qualify for amnesty, such person must pay all annual vault charges for
which he or she is liable. Upon payment by such person to the commis-
sioner of all such charges as provided in this subdivision, the commis-
sioner shall waive any applicable penalties and interest, and no civil,
administrative or criminal action or proceeding shall be brought against
such person with respect to the charges so paid. In addition, the
commissioner shall release the lien binding upon the premises immediate-
ly adjoining the vault pursuant to subdivision c of section 11-2711 of
this chapter for charges which became payable prior to the time such
person acquired title to the premises. Failure to pay all charges as
provided in this subdivision shall invalidate any amnesty granted pursu-
ant to this section.
A. 10030 1131
(2) In the case of any vault adjoining premises owned by a person who
(A) prior to January first, nineteen hundred eighty-nine, paid all annu-
al vault charges and interest and penalties for which he or she was
liable, and (B) is otherwise in full compliance with this chapter, the
commissioner of finance shall release the lien binding upon the premises
immediately adjoining the vault pursuant to subdivision c of section
11-2711 of this chapter for charges which became payable prior to the
time such person acquired title to the premises.
c. Amnesty shall not be granted to any person subject to the annual
vault charge who is a party to any civil litigation which is pending on
the date of such person's application in any court of this state or the
United States for nonpayment or other delinquency in relation to the
annual vault charge. A civil litigation shall not be deemed to be pend-
ing if such person withdraws from such litigation prior to the granting
of amnesty.
d. No refund or credit shall be granted of any penalty or interest
paid prior to the time the person subject to the annual vault charge
makes a request for amnesty pursuant to subdivision b of this section.
e. Unless the commissioner of finance on his or her own motion rede-
termines the amount of the annual vault charge, no refund or credit
shall be granted of any charges paid under this section.
f. The commissioner of finance shall formulate such regulations as are
necessary, issue forms and instructions, and take any and all other
actions necessary to implement the provisions of this section. Further-
more, prior to and throughout the duration of the amnesty period, the
commissioner of finance shall implement a plan for prominently announc-
ing and explaining the amnesty program. Such plan shall be reasonably
calculated to inform all property owners who may be liable for vault
charges and may include written announcements sent in tax bills and
other mailings done by the city of Staten Island to property owners,
public service announcements, advertisements in newspapers of general
circulation and notification of community boards. The plan shall
include, but not be limited to, information which explains the determi-
nation of vault size and charge.
§ 11-2715.3 Severability. If any clause, sentence, paragraph, section
or part of this chapter or the application thereof to any person or
circumstance shall for any reason be adjudged by a court of competent
jurisdiction to be invalid, such judgment shall not affect, impair or
invalidate the remainder of this chapter or the application thereof to
other persons or circumstances, but shall be confined in its operation
to the clause, sentence, paragraph, section or part thereof directly
involved in the controversy in which such judgment shall have been
rendered and to the person or circumstance involved.
§ 11-2716 Construction and enforcement. This chapter shall be
construed and enforced in conformity with chapter nine hundred forty-
nine of the laws of nineteen hundred sixty-two, pursuant to which it is
enacted.
§ 11-2717 Effective date. This chapter shall take effect July first,
nineteen hundred sixty-two and shall remain in effect so long as the
power of the city to adopt such laws for revenue purposes shall exist.
CHAPTER 28
CLAIMS AGAINST FIRE INSURANCE PROCEEDS
A. 10030 1132
§ 11-2801 Claims against fire insurance proceeds. Definitions. 1. As
used in this chapter, any inconsistent provision of law notwithstanding,
the following terms shall have the following meanings:
(a) "Commissioner" means the commissioner of finance.
(b) "Real property" means property upon which there is erected any
residential, commercial or industrial building or structure except a one
or two family residential structure.
(c) "Lien" means any lien including liens for taxes, special ad valo-
rem levies, special assessments and municipal charges arising by opera-
tion of law against property in favor of the city and remaining undisc-
harged for a period of one year or more.
(d) "Board" means the board created by subdivision five of this
section.
(e) "Special lien" means a lien upon fire insurance proceeds pursuant
to this chapter and chapter seven hundred thirty-eight of the laws of
nineteen hundred seventy-seven.
(f) "Fund" means the fire insurance proceeds fund created pursuant to
subdivision ten of this section.
2. The commissioner shall file a notice of intention to claim against
the proceeds of fire insurance policies pursuant to section twenty-two
of the general municipal law with the state superintendent of insurance
for entry in the index of liens maintained by him or her as provided in
section three hundred thirty-one of the insurance law.
3. Prior to the payment of any proceeds of a policy of insurance for
damages caused by fire to real property, which policy insures the inter-
est of an owner and is issued on real property located within the city,
and following notification to the commissioner by an insurer of the
filing of a claim for payment of such proceeds, the commissioner shall
claim, by serving a certificate of lien, against such proceeds to the
extent of any lien, including interest and penalties to the date of the
claim, thereon, which claim when made and perfected in the manner
provided for in section twenty-two of the general municipal law and
section three hundred thirty-one of the insurance law, shall constitute
a special lien against such proceeds and shall, as to such proceeds, be
prior to all other liens and claims except the claim of a mortgagee of
record named in such policy. Notice of the service of the certificate
of the special lien shall be given to the insured by certified mail.
4. The provisions of this chapter shall not be deemed or construed to
alter or impair the right of the city to acquire or enforce any lien
against property but shall be in addition to any other power provided by
law to acquire or enforce such right.
5. The fire insurance proceeds claims board is hereby established to
administer the provisions of subdivisions six through thirteen of this
section. The board shall consist of the first deputy mayor, who shall
be chairperson, the commissioner of buildings, the commissioner of hous-
ing preservation and development, and the commissioner of finance, each
of whom shall have the power to designate an alternate to represent him
or her at board meetings with all the rights and powers, including the
right to vote, reserved to all board members, provided that such desig-
nation shall be in writing to the chairperson. So far as practicable and
subject to the approval of the mayor, the services of all other city
departments and agencies shall be made available by their respective
heads to the board for the carrying out of its functions. Each member
shall serve without additional compensation except for expenses actually
incurred.
A. 10030 1133
6. Whenever the proceeds of policy of fire insurance which will be or
has been paid to the city instead of an insured, all or part of such
proceeds may be paid or released to the insured if the insured satisfies
the board that the affected premises have been or will be repaired or
restored, that such repairs or restoration are in the public interest,
and the insured is issued and complies with a certificate of the board
pursuant to this chapter. To secure such payment or release of proceeds
the insured must notify the board within forty-five days after the mail-
ing to the insured of a notice of the service of the certificate of
special lien pursuant to subdivision three of this section, of the
intention to restore or repair the affected premises and must file with
the board a completed application with all required supporting documen-
tation pursuant to subdivision seven of this section within sixty days
thereafter, unless the board grants an extension for a stated period of
time.
7. The release or return to the insured of any amounts to which he or
she or it would otherwise be entitled to claim shall be subject to the
following conditions:
(a) Such release or return shall be subject to the repair or restora-
tion of the affected premises, in accordance with applicable building
laws, to the condition it was in prior to the time the lien of the city
arose, or to an improved condition.
(b) The insured shall file with the board an application in affidavit
form, with such supporting documentation as the board shall require,
containing the following:
(i) A complete description of the nature and extent of the damage to
the insured premises and of the condition of the premises prior to the
time the lien of the city arose;
(ii) A complete description of the nature of the repairs or restora-
tion to be undertaken and the cost thereof;
(iii) A statement as to the source of funds needed to complete such
repairs or restoration if the insurance proceeds are not sufficient
therefor;
(iv) The name and address of each contractor who will effect such
repairs or restoration;
(v) An estimated time schedule showing how long the repairs or resto-
ration, and each phase thereof, will take; and
(vi) Such other information as may be required by the board to enable
it to determine whether the repairs or restoration are in the public
interest and will be or have been timely and properly made.
(c) Upon a preliminary approval by the board of an application pursu-
ant to paragraph (b) of this subdivision, the board may issue a certif-
icate, to be signed by the chairperson or his or her designee; evidenc-
ing the right of release to the insured of amounts representing
insurance proceeds, upon such conditions as may be set forth therein.
The repairs or restoration required by the board shall be completed in
compliance with the terms and conditions of the certificate prior to the
release or return of any part of the insurance proceeds, provided howev-
er that the board may, upon the written request of the insured and in
its sole discretion, approve a prior release of such proceeds or a
portion thereof, in a lump sum or in installments, where the insured
certifies and demonstrates that such release is required to permit such
repairs or restoration to go forward. Any such insurance proceeds
released or returned prior to the completion of the repairs or restora-
tion required by the board may be paid directly to the contractor or
contractors responsible for making such repairs or restoration. Such
A. 10030 1134
payment shall, to the extent thereof, release the board from further
liability to the insured.
8. If the insured: (i) fails to notify the city of his or her or its
intention to repair or restore the affected premises as required in
subdivision six of this section, (ii) fails to file a completed applica-
tion pursuant to this chapter, or (iii) fails to obtain a certificate
from the board or comply therewith within the time set forth, the right
of the insured to assert a claim against the insurance proceeds, except
to the extent they exceed the amount of the lien, shall terminate.
9. Until such termination, any insurance proceeds received by the city
shall be deposited in a special fund and shall be retained therein.
Upon termination of the insured's right to claim against the proceeds,
the proceeds and any interest accrued thereon shall be applied to the
liens affecting the premises in a manner determined by the board and may
be transferred to the general fund.
10. There shall be established in the office of the commissioner a
fund for the deposit of fire insurance proceeds to be held and applied
in accordance with this chapter. Such funds shall not be held together
with the general tax levies in the general fund.
11. The lien or liens against the affected premises upon which the
special lien against proceeds is based shall continue in full force and
effect except to the extent that such lien or liens are or have been
paid.
12. The board may, pursuant to this chapter, release, compromise or
adjust the special lien upon insurance proceeds created by this chapter.
Any certificate issued by such board pursuant to this chapter shall be
for the purpose of preserving and evidencing the right of release of the
special lien created by this chapter, shall be subject solely to the
provisions of this chapter, and shall not be deemed to be a contract
subject to city regulation. Any repair or restoration performed in
anticipation of a release of insurance proceeds shall not be deemed to
be a public work or municipal project nor to have been done pursuant to
a municipal contract.
13. The board shall be empowered to promulgate rules and regulations
and to adopt approved forms to be used by applicants.
CHAPTER 40
CRIMES AND OTHER OFFENSES: SEIZURES AND FORFEITURES
§ 11-4001 Definitions. (a) As used in this chapter, the term "person"
shall include, but shall not be limited to, an individual, corporation
(including a dissolved corporation), partnership, association, trust or
estate.
(b) As used in this chapter, the term "person" shall also include an
officer, employee or agent of a corporation; a member, employee or agent
of a partnership or association; an employee or agent of an individual
proprietorship; an employee or agent of an estate or trust; or a fiduci-
ary.
(c) As used in this chapter, the term "felony" and the term "misdemea-
nor" shall have the same meaning as they have in the penal law, and the
disposition of such offenses and the sentences imposed therefor shall be
as provided in such law, except: (1) notwithstanding the provisions of
paragraph a of subdivision one of section 80.00 and paragraph (a) of
subdivision one of section 80.10 of the penal law relating to the fine
for a felony, the court may impose a fine not to exceed the greater of
double the amount of the underpaid tax liability resulting from the
A. 10030 1135
commission of the crime or fifty thousand dollars, or, in the case of a
corporation the fine may not exceed the greater of double the amount of
the underpaid tax liability resulting from the commission of the crime
or two hundred fifty thousand dollars, and (2) notwithstanding the
provisions of subdivision one of section 80.05 and paragraph (b) of
subdivision one of section 80.10 of the penal law relating to the fine
for a class A misdemeanor, the court may impose a fine not to exceed ten
thousand dollars, except that in the case of a corporation the fine may
not exceed twenty thousand dollars.
(d) As used in this chapter:
(1) "city" shall mean the city of Staten Island; and
(2) "state" shall mean the state of New York.
§ 11-4002 Tax fraud acts. (a) As used in this chapter, "tax fraud act"
means willfully engaging in an act or acts or willfully causing another
to engage in an act or acts pursuant to which a person:
(1) fails to make, render, sign, certify, or file any return or report
required under the provisions of any designated chapter of this title or
any rule or regulation promulgated thereunder within the time required
by or under the provisions of any designated chapter of this title or
such rule or regulation;
(2) knowing that a return, report, statement or other document under
any designated chapter of this title contains any materially false or
fraudulent information, or omits any material information, files or
submits that return, report, statement or document with the city or the
state, or with any public office or public officer of the city or the
state;
(3) knowingly supplies or submits materially false or fraudulent
information in connection with any return, audit, investigation, or
proceeding or fails to supply information within the time required by or
under the provisions of any designated chapter of this title or any rule
or regulation promulgated under any designated chapter of this title;
(4) engages in any scheme to defraud the city or the state or a
government instrumentality of the city or of the state by false or frau-
dulent pretenses, representations or promises as to any material matter,
in connection with any tax imposed under any designated chapter of this
title or any matter under any designated chapter of this title;
(5) fails to remit any tax collected in the name of the city or the
state or on behalf of the city or the state when such collection is
required under any designated chapter of this title;
(6) fails to collect any tax required to be collected under chapter
twelve, thirteen, twenty-three-A, twenty-three-B or twenty-five of this
title;
(7) with intent to evade any tax imposed under any designated chapter
of this title, fails to pay such tax; or
(8) issues an exemption certificate, interdistributor sales certif-
icate, resale certificate, or any other document capable of evidencing a
claim that taxes imposed under a designated chapter of this title do not
apply to a transaction, which he or she does not believe to be true and
correct as to any material matter, which omits any material information,
or which is false, fraudulent, or counterfeit.
(b) For purposes of this section, the term "willfully" shall mean
acting with either intent to defraud, intent to evade the payment of
taxes or intent to avoid a requirement of this title, a lawful require-
ment of the commissioner or a known legal duty.
(c) For purposes of this chapter, the term "designated chapter" shall
mean chapter five, six, seven, eight, nine, eleven, twelve, thirteen,
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fourteen, fifteen, twenty-one, twenty-two, twenty-three-A, twenty-four,
twenty-five or twenty-seven of this title.
§ 11-4003 City criminal tax fraud in the fifth degree. A person
commits city criminal tax fraud in the fifth degree when he or she
commits a tax fraud act. City criminal tax fraud in the fifth degree is
a class A misdemeanor.
§ 11-4004 City criminal tax fraud in the fourth degree. A person
commits city criminal tax fraud in the fourth degree when he or she
commits a tax fraud act or acts and, with the intent to evade any tax
due under any designated chapter of this title, or to defraud the city
or the state or any instrumentality of the city or the state, the person
pays the city or the state or any public office or public officer of the
city or the state or any instrumentality of the city or state, whether
by means of underpayment or receipt of refund or both, in a period of
not more than one year in excess of three thousand dollars less than the
tax liability that is due. City criminal tax fraud in the fourth degree
is a class E felony.
§ 11-4005 City criminal tax fraud in the third degree. A person
commits city criminal tax fraud in the third degree when he or she
commits a tax fraud act or acts and, with the intent to evade any tax
due under any designated chapter of this title, or to defraud the city
or the state or any instrumentality of the city or the state, the person
pays the city or the state or any public office or public officer of the
city or the state or any instrumentality of the city or state, whether
by means of underpayment or receipt of refund or both, in a period of
not more than one year in excess of ten thousand dollars less than the
tax liability that is due. City criminal tax fraud in the third degree
is a class D felony.
§ 11-4006 City criminal tax fraud in the second degree. A person
commits city criminal tax fraud in the second degree when he or she
commits a tax fraud act or acts and, with the intent to evade any tax
due under any designated chapter of this title, or to defraud the city
or the state or any instrumentality of the city or the state, the person
pays the city or the state or any public office or public officer of the
city or the state or any instrumentality of the city or state, whether
by means of underpayment or receipt of refund or both, in a period of
not more than one year in excess of fifty thousand dollars less than the
tax liability that is due. City criminal tax fraud in the second degree
is a class C felony.
§ 11-4007 City criminal tax fraud in the first degree. A person
commits city criminal tax fraud in the first degree when he or she
commits a tax fraud act or acts and, with the intent to evade any tax
due under any designated chapter of this title, or to defraud the city
or the state or any instrumentality of the city or the state, the person
pays the city or the state or any public office or public officer of the
city or the state or any instrumentality of the city or state, whether
by means of underpayment or receipt of refund or both, in a period of
not more than one year in excess of one million dollars less than the
tax liability that is due. City criminal tax fraud in the first degree
is a class B felony.
§ 11-4008 Aggregation. For purposes of this chapter, the payments due
and not paid under any designated chapter of this title pursuant to a
common scheme or plan or due and not paid, within one year, may be
charged in a single count, and the amount of underpaid tax liability
incurred, within one year, may be aggregated in a single count.
A. 10030 1137
§ 11-4009 Non-preemption; penal law anticipatory offenses and accesso-
rial liability apply. (a) Unless expressly stated otherwise, the penal-
ties provided in this chapter or under any other chapter of this title
shall not preclude prosecution for any offense under the penal law or
any other criminal statute.
(b) The offenses specified in title G of the penal law and the
provisions of article twenty of the penal law are applicable to all
offenses defined in this chapter.
§ 11-4010 Failure to obey subpoenas; false testimony. (a) Any person
who, being duly subpoenaed, pursuant to chapter five, six, seven, eight,
nine, eleven, twelve, thirteen, fourteen, fifteen, twenty-one, twenty-
two, twenty-four, twenty-five or twenty-seven of this title or the
provisions of the civil practice law and rules, in connection with a
matter arising under any of such chapters, to attend as a witness or to
produce books, accounts, records, memoranda, documents or other papers,
(i) fails or refuses to attend without lawful excuse, (ii) refuses to be
sworn, (iii) refuses to answer any material and proper question, or (iv)
refuses, after reasonable notice, to produce books, papers and documents
in his or her possession or under his or her control which constitute
material and proper evidence shall be guilty of a misdemeanor.
(b) Any person who shall testify falsely in any material matter pend-
ing before the commissioner of finance with respect to any of the chap-
ters specified in subdivision (a) of this section shall be guilty of and
punishable for perjury.
§ 11-4011 Failure to file bond. Any person willfully failing to file a
bond where such filing is required pursuant to section 11-1203, 11-1304
or 11-2505 of this title shall be guilty of a misdemeanor. (a) Any
person who willfully attempts in any manner to evade or defeat any tax
imposed by chapter thirteen of this title or payment thereof where such
tax is unpaid on ten thousand cigarettes or more or has previously been
convicted two or more times of a crime set forth in this chapter relat-
ing to cigarette taxes; shall be guilty of a class E felony.
(b) Any person, other than an agent so authorized by the commissioner
of finance, who possesses or transports for the purpose of sale any
unstamped or unlawfully stamped packages of cigarettes subject to tax
under chapter thirteen of this title, or who sells or offers for sale
unstamped or unlawfully stamped packages of cigarettes in violation of
the provisions of such chapter shall be guilty of a misdemeanor. Any
person who violates the provisions of this subdivision after having
previously been convicted of a violation of this subdivision within the
preceding five years shall be guilty of a class E felony.
(c) (1) Any person, other than an agent so authorized by the commis-
sioner of finance, who willfully possesses or transports for the purpose
of sale ten thousand or more cigarettes subject to the tax imposed by
chapter thirteen of this title in any unstamped or unlawfully stamped
packages or who willfully sells or offers for sale ten thousand or more
cigarettes in any unstamped or unlawfully stamped packages in violation
of such chapter shall be guilty of a class E felony.
(2) Any person, other than an agent appointed by the commissioner of
finance, who willfully possesses or transports for the purpose of sale
thirty thousand or more cigarettes subject to the tax imposed by chapter
thirteen of this title in any unstamped or unlawfully stamped packages
or who willfully sells or offers for sale thirty thousand or more ciga-
rettes in any unstamped or unlawfully stamped packages in violation of
such chapter shall be guilty of a class D felony.
A. 10030 1138
(d) For the purposes of this section, the possession or transportation
within this city by any person, other than an agent, at any one time of
five thousand or more cigarettes in unstamped or unlawfully stamped
packages shall be presumptive evidence that such cigarettes are
possessed or transported for the purpose of sale and are subject to the
tax imposed by chapter thirteen of this title. With respect to such
possession or transportation, any provisions of chapter thirteen of this
title providing for a time period during which a use tax imposed by such
chapter may be paid on unstamped cigarettes or unlawfully or improperly
stamped cigarettes or during which such cigarettes may be returned to an
agent shall not apply. The possession within this city of more than four
hundred cigarettes in unstamped or unlawfully stamped packages by any
person other than an agent at any one time shall be presumptive evidence
that such cigarettes are subject to tax as provided by chapter thirteen
of this title.
(e) Nothing in this section shall apply to common or contract carriers
or warehouseman while engaged in lawfully transporting or storing
unstamped packages of cigarettes as merchandise, nor to any employee of
such carrier or warehouseman acting within the scope of his employment,
nor to public officers or employees in the performance of their official
duties requiring possession or control of unstamped or unlawfully
stamped packages of cigarettes, nor to temporary incidental possession
by employees or agents of persons lawfully entitled to possession, not
to persons whose possession is for the purpose of aiding police officers
in performing their duties.
(f) Any willful act or omission, other than those described in section
11-4002 of this chapter or subdivision (a), (b), (c), (d), (e) or (g) of
this section, by any person which constitutes a violation of any
provision of chapter thirteen of this title or subchapter one of chapter
two of title twenty of the code of the preceding municipality shall
constitute a misdemeanor.
(g) Any person who falsely or fraudulently makes, alters or counter-
feits any stamp prescribed by the commissioner of finance under the
provisions of chapter thirteen of this title, or causes or procures to
be falsely or fraudulently made, altered or counterfeited any such
stamp, or knowingly and willfully utters, purchases, passes or tenders
as true any such false, altered or counterfeited stamp, or knowingly and
willfully possess any cigarettes in packages bearing any such false,
altered or counterfeited stamp, and any person who knowingly and will-
fully makes, causes to be made, purchases or receives any device for
forging or counterfeiting any stamp, prescribed by the commissioner of
finance under the provisions of chapter thirteen of this title, or who
knowingly and willfully possesses any such device, shall be guilty of a
class E felony. For the purposes of this subdivision, the words "stamp
prescribed by the commissioner of finance" shall include a stamp,
impression or imprint made by a metering machine, the design of which
has been approved by the commissioner of finance and the state tax
commission.
§ 11-4012.1 Tobacco products tax. (a) Attempt to evade or defeat tax.
Any person who willfully attempts in any manner to evade or defeat any
tax imposed by section 11-1302.1 of this chapter or the payment thereof
shall, in addition to any other penalties provided by law, be guilty of
a misdemeanor.
(b) Any willful act or omission with respect to the tax imposed by
section 11-1302.1 of this chapter, with the exception of those described
in subdivision (a) of this section, by any person which constitutes a
A. 10030 1139
violation of any provision of chapter thirteen of this title or chapter
two of title twenty of the code of the preceding municipality shall
constitute a misdemeanor.
§ 11-4014 Tax on commercial motor vehicles and motor vehicles for
transportation of passengers. (a) Any person who counterfeits or forges,
or causes or procures to be counterfeited or forged, or aids or assists
in counterfeiting or forging, by any way, art, or means, any stamp,
indicia of payment or indicia that no tax is payable authorized by chap-
ter eight of this title, or who knowingly acquires, possesses, disposes
of or uses such a counterfeited or forged stamp, indicia of payment or
indicia that no tax is payable, or who transfers a stamp, indicia of
payment or indicia that no tax is payable where such a transfer is not
authorized by such chapter shall be guilty of a misdemeanor.
(b) The owner or driver of any motor vehicle subject to the tax
imposed by chapter eight who, upon demand, shall fail to exhibit the
stamp or other indicia of payment of the tax to the commissioner of
finance, his duly authorized agent or employee, or any police officer of
this city or state, as required by subdivision a of section 11-809 of
this chapter, shall be guilty of a misdemeanor.
§ 11-4015 Tax on owners of motor vehicles. (a) Any person who counter-
feits or forges, or causes or procures to be counterfeited or forged, or
aids or assists in counterfeiting or forging, by any way, art, or means,
any receipt or other document evidencing payment or exemption from the
tax imposed by chapter twenty-two of this title, or who knowingly
acquires, possesses, disposes of or uses such a counterfeited or forged
receipt or other document, shall be guilty of a misdemeanor.
(b) Any person who uses, operates or parks or permits the use, opera-
tion or parking upon any public highway or street of a motor vehicle
owned by him or her or under his or her control for which the tax
imposed by chapter twenty-two of this title has not been paid in accord-
ance with the provisions of such chapter and the regulations prescribed
thereunder shall be guilty of a misdemeanor. For the purpose of this
subdivision any person using, operating or parking a motor vehicle shall
be presumed to be doing so with the permission of the owner of such
motor vehicle.
(c) To the extent that any other section of this chapter is applicable
to the tax imposed by chapter twenty-two of this title, any reference in
such section to the commissioner of finance shall be deemed a reference
to the commissioner of motor vehicles or to the commissioner of finance
if designated as his or her agent.
§ 11-4016 Hotel room occupancy tax. (a) Any person who willfully fails
to file a registration certificate as required pursuant to the
provisions of chapter twenty-five of this title and such data in
connection therewith as the commissioner of finance by regulation or
otherwise may require, or willfully fails to display or surrender a
certificate of authority as required by chapter twenty-five of this
title, or willfully assigns or transfers such certificate of authority,
shall be guilty of a misdemeanor, provided, however, that the provisions
of this subdivision shall not apply to a failure to surrender a certif-
icate of authority which is required to be surrendered where business
never commenced.
(b) Any person who willfully fails to charge separately the tax
imposed under chapter twenty-five of this title or willfully fails to
state such tax separately on any bill, statement, memorandum or receipt
issued or employed by such person upon which the tax is required to be
stated separately as provided in such chapter, or who shall refer or
A. 10030 1140
cause reference to be made to this tax in a form or manner other than
required by such chapter, shall be guilty of a misdemeanor.
§ 11-4017 Violation of secrecy provisions. Any person who violates the
provisions of subdivision a of section 11-1214, subdivision (a) of
section 11-2415, subdivision a of section 11-2115, subdivision a of
section 11-1516, subdivision a of section 11-818, subdivision a of
section 11-716, subdivision a of section 11-2215, subdivision a of
section 11-1116, subdivision one of section 11-688, subdivision one of
section 11-538, subdivision a of section 11-2516, or subdivision a of
section 11-1414 of this title shall be guilty of a misdemeanor.
§ 11-4018 Other offenses. (a) Any person who willfully fails to keep
or retain any records required to be kept or retained by chapter seven,
twelve, fourteen, twenty-one, twenty-two, twenty-four or twenty-seven of
this title shall be guilty of a misdemeanor.
(b) Any person willfully simulating, altering, defacing, destroying or
removing any evidence of the filing of a return or the payment of a tax
provided for in chapter twenty-one of this title shall be guilty of a
misdemeanor.
(c) Any person failing to file a certificate of registration or infor-
mation registration certificate as required by chapter eight of this
title shall be guilty of a misdemeanor.
(d) Any person refusing access to personnel authorized by the commis-
sioner of finance to inspect any vault or any premises concerning which
a return or information return may be required under chapter twenty-sev-
en of this title shall be guilty of a misdemeanor.
§ 11-4019 Jurisdiction. For purposes of the taxes imposed by chapter
five or six of this title, any prosecution under this chapter may be
conducted in any county where the person against whom a violation or
violations of any of the provisions of this chapter are charged resides
or has a place of business, or from which such person received any
income, or in any county in which any such violation is committed.
(a) Notwithstanding any other provision of law, the corporation coun-
sel shall have concurrent jurisdiction with any district attorney in the
prosecution of any offenses under this chapter.
(b) Notwithstanding any other provision of law, the attorney general
shall have concurrent jurisdiction with the corporation counsel and with
any district attorney in the prosecution of any offenses under this
chapter relating to the tax imposed by chapter thirteen of this title,
as well as any offenses arising out of such prosecution.
§ 11-4020 Disposition of fines. All fines levied under this chapter
shall be paid to the commissioner of finance and deposited in the gener-
al fund of the city.
§ 11-4021 Seizure and forfeiture of cigarettes. (a) Whenever a police
officer designated in section 1.20 of the criminal procedure law or a
peace officer designated in subdivision five of section 2.10 of such
law, acting pursuant to his or her special duties, shall discover any
cigarettes subject to any tax provided by chapter thirteen of this
title, and upon which the tax has not been paid or the stamps not
affixed as required by such chapter, they are hereby authorized and
empowered forthwith to seize and take possession of such cigarettes,
together with any vending machine or receptacle in which they are held
for sale. Such cigarettes, vending machine or receptacle seized by a
police officer or such peace officer shall be turned over to the commis-
sioner of finance.
(b) The seized cigarettes and any vending machine or receptacle seized
therewith, but not the money contained in such vending machine or recep-
A. 10030 1141
tacle shall thereupon be forfeited to the city, unless the person from
whom the seizure is made, or the owner of such seized cigarettes, vend-
ing machine or receptacle, or any other person having an interest in
such property, shall within ten days of such seizure, apply to the
commissioner of finance for a hearing to determine the propriety of the
seizure, or unless the commissioner of finance shall on his or her own
motion release the seized cigarettes, vending machine or receptacle.
After such hearing the commissioner of finance shall give notice of his
or her decision to the petitioner. The decision of the commissioner
shall be reviewable for error, illegality, unconstitutionality or any
other reason whatsoever by a proceeding under article seventy-eight of
the civil practice law and rules if application therefor is made to the
supreme court within thirty days after the giving of the notice of such
decision. Such proceeding shall not be instituted unless there shall
first be filed with the commissioner of finance an undertaking, issued
by a surety company authorized to transact business in New York state
and approved by the superintendent of insurance of New York state as to
solvency and responsibility, in such amount as a justice of the supreme
court shall approve, to the effect that if such proceeding be dismissed,
or the seizure confirmed, the petitioner will pay all costs and charges
which may accrue in the prosecution of the proceeding.
(c) The commissioner of finance may, within a reasonable time after
the forfeiture to the city of such vending machines or receptacles, upon
publication of a notice to such effect for at least five successive
days, in a newspaper published or circulated in the city, sell such
forfeited vending machines or receptacles at public sale and pay the
proceeds into the treasury of the city to the credit of the general
fund. Such seized vending machines or receptacles may be sold prior to
forfeiture if the owner of the seized property consents to the sale.
Notwithstanding any other provision of this section, the commissioner of
finance may enter into an agreement with the state tax commission to
provide for the disposition between the city and state of the proceeds
from any such sale. The commissioner of finance may also transfer any
seized cigarettes to the state for destruction. All cigarettes forfeited
to the state shall be destroyed or used for law enforcement purposes,
except that cigarettes that violate, or are suspected of violating,
federal trademark laws or import laws shall not be used for law enforce-
ment purposes. If the commissioner determines the cigarettes may not be
used for law enforcement purposes, the commissioner of finance must,
within a reasonable time after the forfeiture to the city of such ciga-
rettes, upon publication of a notice to such effect for at least five
successive days, prior to destruction, in a newspaper published or
circulated in the city, destroy such forfeited cigarettes. Such commis-
sioner may, prior to any destruction of cigarettes, permit the true
holder of the trademark rights in the cigarettes to inspect such
forfeited cigarettes in order to assist in any investigation regarding
such cigarettes.
(d) In the alternative, the commissioner of finance, on reasonable
notice by mail or otherwise, may permit the person from whom said ciga-
rettes were seized to redeem the said cigarettes, and any vending
machine or receptacle seized therewith, or may permit the owner of any
such cigarettes, vending machine or receptacle to redeem the same, by
the payment of the tax due, plus a penalty of fifty percent thereof,
plus interest on the amount of tax due for each month or fraction there-
of after such tax became due, determined without regard to any extension
of time for filing or paying, at the rate applicable under subdivision d
A. 10030 1142
of section 11-1317 of this title and the costs incurred in such proceed-
ing, which total payment shall not be less than five dollars; provided,
however, that such seizure and sale or redemption shall not be deemed to
relieve any person from fine or imprisonment provided for in this chap-
ter for violation of any provisions of this chapter or chapter thirteen
of this title.
(e) In the alternative, the commissioner of finance may dispose of any
cigarettes seized pursuant to this section, except those that violate,
or are suspected of violating, federal trademark laws or import laws, by
transferring them to the department of correction for sale to or use by
incarcerated individuals in such institutions.
§ 11-4022 Filing of documents. For purposes of the prosecution of
offenses under the provisions of this title, reports, returns, state-
ments, other documents or other information required to be filed with or
delivered to the commissioner of finance shall include such items which
under the provisions of this title are required to be recorded or filed
with, served upon or delivered to another person, including, but not
limited to, a recording officer of any county within the state, county
clerk, any other governmental agency or entity, or other entity in its
capacity as an agent of the commissioner of finance.
§ 11-4023 Authority to seal premises. (a) If any person has been
finally determined to have engaged in the acts described in subdivision
(b) of this section, the commissioner of finance shall be authorized to
order:
(1) the sealing of any premises operated by such person where such
acts occurred; and
(2) the removal, sealing or making inoperable of any devices, items or
goods used in connection with any of such acts.
(b) The following acts shall serve as the basis for a sealing order
pursuant to this section:
(1) the violation of subdivision a or b of section 11-1303 of this
title or section 17-703 or 20-202 of the code of the preceding munici-
pality on at least two occasions within a three-year period; or
(2) the violation of any provision of chapter thirteen of this title
or any of sections 17-703, 17-703.2, 17-704, 17-705, subdivision a or b
of section 17-706, 17-715 or 20-202 of the code of the preceding munici-
pality on at least three occasions within a three-year period; or
(3) the violation of any provision of section 10-203 of the code of
the preceding municipality on at least two occasions within a three-year
period.
(c) Orders of the commissioner to seal premises. (1) Orders of the
commissioner issued pursuant to this section shall be posted at the
premises at which the acts described in subdivision (b) of this section
have occurred.
(2) Ten days after the date of such posting, and upon the written
directive of the commissioner, police officers designated in section
1.20 of the criminal procedure law and peace officers employed by the
department of finance, including but not limited to the sheriff, under-
sheriff and deputy sheriffs of the city of New York designated as peace
officers in subdivision two of section 2.10 of the criminal procedure
law, are authorized to act upon and enforce such orders.
(3) Any devices, items or goods removed pursuant to this section,
shall be stored in a garage, pound or other place of safety and the
owner or other person lawfully entitled to the possession of such
devices, items or goods may be charged with reasonable costs for removal
A. 10030 1143
and storage payable prior to the release of such devices, items or goods
to such owner or such other person.
(4) The owner or other person lawfully entitled to reclaim the
devices, items or goods described in paragraph three of this subdivision
shall reclaim such devices, items or goods. If such owner or such other
person does not reclaim such devices, items or goods within ninety days
of their removal, such devices, items or goods shall be subject to
forfeiture upon notice and judicial determination in accordance with
provisions of law. Upon forfeiture the department shall, upon a public
notice of at least five days, sell such forfeited devices, items or
goods at public sale. The net proceeds of such sale, after deduction of
the lawful expenses incurred, shall be paid into the general fund of the
city.
(d) Unsealing of premises. The commissioner shall order that any prem-
ises which are sealed pursuant to this section shall be unsealed and
that any devices, items or goods removed, sealed or otherwise made inop-
erable pursuant to this section shall be released, unsealed or made
operable upon:
(1) payment of all outstanding cigarette taxes and civil penalties and
all reasonable costs for removal and storage; and
(2) the expiration of a period of time from the date of enforcement of
the order to be determined by the commissioner not to exceed sixty days.
(e) Any person aggrieved by an order issued pursuant to this section
may seek judicial review of such order through a proceeding pursuant to
article seventy-eight of the civil practice law and rules.
(f) Removal of seal. Any person who removes the seal on any premises
or removes the seal on or makes operable any devices, items or goods
sealed or otherwise made inoperable in accordance with an order of the
commissioner shall be guilty of a misdemeanor.
§ 11-4024 Seizure and forfeiture of taxed and lawfully stamped ciga-
rettes sold or possessed by unlicensed retail or wholesale dealers,
flavored tobacco products, flavored electronic cigarettes and flavored
e-liquid. (a) Whenever a police officer designated in section 1.20 of
the criminal procedure law or a peace officer employed by the department
of finance, including but not limited to the sheriff, undersheriff or
deputy sheriffs of the city of New York designated as peace officers in
subdivision two of section 2.10 of the criminal procedure law, shall
discover (1) any cigarettes subject to any tax provided by chapter thir-
teen of this title, and upon which the tax has been paid and the stamps
affixed as required by such chapter, but such cigarettes are sold,
offered for sale or possessed by a person in violation of section
11-1303 of this code or section 17-703 or 20-202 of the code of the
preceding municipality, or (2) any flavored tobacco product that is
sold, offered for sale or possessed with intent to sell in violation of
section 17-715 of the code of the preceding municipality, he or she is
hereby authorized and empowered forthwith to seize and take possession
of such cigarettes or flavored tobacco product, together with any vend-
ing machine or receptacle in which such cigarettes or flavored tobacco
product are held for sale. Such cigarettes or flavored tobacco product,
vending machine or receptacle seized by such police officer or such
peace officer shall be turned over to the commissioner of finance.
(b) The seized cigarettes or flavored tobacco product and any vending
machine or receptacle seized therewith, but not the money contained in
such vending machine or receptacle, shall thereupon be forfeited to the
city, unless the person from whom the seizure is made, or the owner of
such seized cigarettes, flavored tobacco product, vending machine or
A. 10030 1144
receptacle, or any other person having an interest in such property,
shall within ten days of such seizure, apply to the commissioner of
finance for a hearing to determine the propriety of the seizure, or
unless the commissioner of finance shall on his or her own motion
release the seized cigarettes, flavored tobacco product, vending machine
or receptacle. After such hearing the commissioner of finance shall give
notice of his or her decision to the petitioner. The decision of the
commissioner shall be reviewable for error, illegality, unconstitution-
ality or any other reason whatsoever by a proceeding under article
seventy-eight of the civil practice law and rules.
(c) The commissioner of finance may, within a reasonable time after
the forfeiture to the city of such vending machine or receptacle under
this section, upon publication of a notice to such effect for at least
five successive days, in a newspaper published or circulated in the
city, sell such forfeited vending machine or receptacle at public sale
and pay the proceeds into the general fund of the city. Such seized
vending machine or receptacle may be sold prior to forfeiture if the
owner of the seized property consents to the sale. Cigarettes or
flavored tobacco product forfeited to the city under this section shall
be destroyed or used for law enforcement purposes, except that ciga-
rettes that violate, or are suspected of violating, federal trademark
laws or import laws shall not be used for law enforcement purposes. If
the commissioner determines the cigarettes forfeited under this section
may not be used for law enforcement purposes, the commissioner of
finance must, within a reasonable time after the forfeiture to the city
of such cigarettes, upon publication of a notice to such effect for at
least five successive days, prior to destruction, in a newspaper
published or circulated in the city, destroy such forfeited cigarettes.
(d) In the alternative, the commissioner of finance, on reasonable
notice by mail or otherwise, may permit the person from whom a seizure
of cigarettes or flavored tobacco product under this section was made,
to redeem any vending machine or receptacle seized with such cigarettes
or flavored tobacco product, or may permit the owner of any such vending
machine or receptacle to redeem the same, upon the payment of any civil
penalty imposed pursuant to chapter seven of title seventeen or subchap-
ter one of chapter two of title twenty of the code of the preceding
municipality and the costs incurred in such proceeding.
(e) For purposes of this section, a flavored tobacco product means a
flavored tobacco product, flavored electronic cigarette or flavored
e-liquid.
§ 11-4025 Seizure and forfeiture of untaxed tobacco products. (a)
Whenever a police officer designated in section 1.20 of the criminal
procedure law or a peace officer employed by the department of finance,
including but not limited to the sheriff, undersheriff or deputy sher-
iffs of the city designated as peace officers in subdivision two of
section 2.10 of the criminal procedure law, discovers any tobacco
products subject to any tax provided by chapter thirteen of this title,
and upon which the tax has not been paid, he or she is hereby authorized
and empowered forthwith to seize and take possession of such tobacco
products, together with any vending machine or receptacle in which such
tobacco products are held for sale. Such tobacco products, vending
machine or receptacle seized by such police officer or such peace offi-
cer shall be turned over to the commissioner of finance.
(b) The seized tobacco products and any vending machine or receptacle
seized therewith, but not the money contained in such vending machine or
receptacle, shall thereupon be forfeited to the city, unless the person
A. 10030 1145
from whom the seizure is made, or the owner of such seized tobacco
products, vending machine or receptacle, or any other person having an
interest in such property, shall within ten days of such seizure, apply
to the commissioner of finance for a hearing to determine the propriety
of the seizure, or unless the commissioner of finance shall on his or
her own motion release the seized tobacco products, vending machine or
receptacle. After such hearing the commissioner of finance shall give
notice of his or her decision to the petitioner. The decision of the
commissioner shall be reviewable for error, illegality, unconstitution-
ality or any other reason whatsoever by a proceeding under article
seventy-eight of the civil practice law and rules.
(c) The commissioner of finance may, within a reasonable time after
the forfeiture to the city of such vending machine or receptacle under
this section, upon publication of a notice to such effect for at least
five successive days, in a newspaper published or circulated in the
city, sell such forfeited vending machine or receptacle at public sale
and pay the proceeds into the general fund of the city. Such seized
vending machine or receptacle may be sold prior to forfeiture if the
owner of the seized property consents to the sale. Tobacco products
forfeited to the city under this section shall be destroyed or used for
law enforcement purposes, except that tobacco products that violate, or
are suspected of violating, federal trademark laws or import laws shall
not be used for law enforcement purposes. If the commissioner determines
the tobacco products forfeited under this section may not be used for
law enforcement purposes, the commissioner of finance must, within a
reasonable time after the forfeiture to the city of such cigarettes,
upon publication of a notice to such effect for at least five successive
days, prior to destruction, in a newspaper published or circulated in
the city, destroy such forfeited tobacco products.
(d) In the alternative, the commissioner of finance, on reasonable
notice by mail or otherwise, may permit the person from whom a seizure
of tobacco products under this section was made, to redeem any vending
machine or receptacle seized with such tobacco products, or may permit
the owner of any such vending machine or receptacle to redeem the same,
upon the payment of any civil penalty imposed pursuant to chapter seven
of title seventeen or subchapter one of chapter two of title twenty of
the code of the preceding municipality and the costs incurred in such
proceeding.
§ 11-4026 Seizure and forfeiture of taxed tobacco products sold or
possessed by unlicensed retail or wholesale dealers other than flavored
tobacco products subject to seizure under section 11-4024 of this chap-
ter.
(a) Whenever a police officer designated in section 1.20 of the crimi-
nal procedure law or a peace officer employed by the department of
finance, including but not limited to the sheriff, undersheriff or depu-
ty sheriffs of the city designated as peace officers in subdivision two
of section 2.10 of the criminal procedure law, discovers any tobacco
products, other than flavored tobacco products, subject to any tax
provided by chapter thirteen of this title, and upon which the tax has
been paid, but such tobacco products are sold, offered for sale or
possessed by a person in violation of section 11-1303 of this code or
section 17-703 or 20-202 of the code of the preceding municipality, he
or she is hereby authorized and empowered forthwith to seize and take
possession of such tobacco products, together with any vending machine
or receptacle in which such tobacco products are held for sale. Such
tobacco products, vending machine or receptacle seized by such police
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officer or such peace officer shall be turned over to the commissioner
of finance.
(b) The seized tobacco products and any vending machine or receptacle
seized therewith, but not the money contained in such vending machine or
receptacle, shall thereupon be forfeited to the city, unless the person
from whom the seizure is made, or the owner of such seized tobacco
products, vending machine or receptacle, or any other person having an
interest in such property, shall within ten days of such seizure, apply
to the commissioner of finance for a hearing to determine the propriety
of the seizure, or unless the commissioner of finance shall on his or
her own motion release the seized tobacco products, vending machine or
receptacle. After such hearing the commissioner of finance shall give
notice of his or her decision to the petitioner. The decision of the
commissioner shall be reviewable for error, illegality, unconstitution-
ality or any other reason whatsoever by a proceeding under article
seventy-eight of the civil practice law and rules.
(c) The commissioner of finance may, within a reasonable time after
the forfeiture to the city of such vending machine or receptacle under
this section, upon publication of a notice to such effect for at least
five successive days, in a newspaper published or circulated in the
city, sell such forfeited vending machine or receptacle at public sale
and pay the proceeds into the general fund of the city. Such seized
vending machine or receptacle may be sold prior to forfeiture if the
owner of the seized property consents to the sale. Tobacco products
forfeited to the city under this section shall be destroyed or used for
law enforcement purposes, except that tobacco products that violate, or
are suspected of violating, federal trademark laws or import laws shall
not be used for law enforcement purposes. If the commissioner determines
the tobacco products forfeited under this section may not be used for
law enforcement purposes, the commissioner of finance must, within a
reasonable time after the forfeiture to the city of such tobacco
products, upon publication of a notice to such effect for at least five
successive days, prior to destruction, in a newspaper published or
circulated in the city, destroy such forfeited tobacco products.
(d) In the alternative, the commissioner of finance, on reasonable
notice by mail or otherwise, may permit the person from whom a seizure
of tobacco products under this section was made, to redeem any vending
machine or receptacle seized with such tobacco products, or may permit
the owner of any such vending machine or receptacle to redeem the same,
upon the payment of any civil penalty imposed pursuant to chapter seven
of title seventeen or subchapter one of chapter two of title twenty of
the code of the preceding municipality and the costs incurred in such
proceeding.
Title 12 - Personnel and Labor
§ 12-101 Office of payroll administration. There shall be within the
comptroller's office an office of payroll administration which shall:
1. Support the implementation of a computerized payroll management
system;
2. Maintain the integrity and accuracy of the payroll system;
3. Develop uniform procedures for payroll processing and development;
4. Distribute and account for payroll and administer payroll
deductions; and
5. Render services to, and receive information and assistance from,
public corporations upon such terms and conditions as may be agreed to
by the office and each such corporation.
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All city agencies shall cooperate with the office as may be necessary
and proper to ensure efficient operation of the payroll management
system.
§ 12-102 Executive director; staff. The comptroller shall appoint an
executive director of payroll administration. Within the appropriations
therefor, the office shall employ such other officers and employees as
may be required to perform its duties.
Title 13 - Reserved
Title 14 - Police
§ 14-101 Definitions. As used in this title, the following terms have
the following meanings:
1. Civil enforcement. The term "civil enforcement" means the issuance
of a civil summons.
2. Civil summons. The term "civil summons" means a civil notice of
violation.
3. Commissioner. The term "commissioner" means the commissioner of the
department.
4. Criminal enforcement. The term "criminal enforcement" means the
charging of a misdemeanor or violation.
5. Criminal summons. The term "criminal summons" means an appearance
ticket issued by the department pursuant to article one hundred fifty of
the criminal procedure law that is an accusatory instrument pursuant to
article one hundred of the criminal procedural law, and returnable to
the criminal court.
6. Department. The term "department" means the police department of
the city of New York.
7. Desk appearance ticket. The term "desk appearance ticket" means an
appearance ticket issued by the department pursuant to article one
hundred fifty of the criminal procedure law that is not an accusatory
instrument pursuant to article one hundred of the criminal procedure
law.
8. Specified unlawful act. The term "specified unlawful act" means an
act that violates any of the following provisions: subdivision b of
section 10-125 of the code of the preceding municipality, subdivision
one of section 16-118 of the code of the preceding municipality, subdi-
vision six of section 16-118 of the code of the preceding municipality
with respect to the act of public urination, subdivision a of section
24-218 of the code of the preceding municipality, section 18-146 of the
code of the preceding municipality, section 18-147 of the code of the
preceding municipality, and rules and regulations of the department of
parks and recreation described in paragraph nine of subdivision a of
section five hundred thirty-three of the charter of the preceding muni-
cipality.
§ 14-102 Composition of force. Until otherwise provided by the mayor,
upon the recommendation of the commissioner, the police force in the
police department, shall consist of the following ranks of members, to
wit:
1. Captains of police, not exceeding in number one to each fifty of
the total number of police officers, in addition to the number detailed
to act as inspectors;
2. Lieutenants of police, not exceeding four in number to each fifty
of the total number of police officers;
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3. Sergeants not exceeding six in number to each fifty police offi-
cers;
4. Surgeons of police, not exceeding forty in number, one of whom
shall be chief surgeon;
5. A veterinarian;
6. Police officers to the number of seven thousand eight hundred thir-
ty-nine.
§ 14-103 Detective bureau. a. The commissioner shall organize and
maintain a bureau for detective purposes to be known as the detective
bureau and shall, from time to time, detail to service in said bureau as
many members of the force as the commissioner may deem necessary and may
at any time revoke any such detail.
b. Of the members of the force so detailed the commissioner may desig-
nate: (1) police officers not exceeding two hundred eighty in number,
as detectives of the first grade, who while performing duty in such
bureau and while so designated as detectives of the first grade, shall
be paid the same salary as lieutenants; and (2) a certain number of
police officers, as detectives of the second grade, who while performing
duty in such bureau and while so designated as detectives of the second
grade, shall be paid the same salary as sergeants; and a certain number
of police officers as detectives of the third grade, who while perform-
ing duty in such bureau and while so designated as detectives of the
third grade shall be paid such salary as may be determined by the mayor.
Any person who has received permanent appointment as a police officer
and is temporarily assigned to perform the duties of a detective shall,
whenever such assignment exceeds eighteen months in duration, be
appointed as a detective and receive the compensation ordinarily paid to
a detective performing such duties.
c. The commissioner may designate lieutenants as commanders of detec-
tive squads, and sergeants as supervisors of detective squads, who while
performing duty in such bureau and while so designated as commanders of
detective squads or supervisors of detective squads shall be paid such
salary as may be determined by the mayor.
d. Any member of the force detailed to such bureau while so detailed
shall retain his or her rank in the force and shall be eligible for
promotion the same as if serving in the uniformed force, and the time
during which he or she serves in such bureau shall count for all
purposes as if served in his or her rank or grade in the uniformed
force.
e. The commissioner may at his or her pleasure revoke any designation
made pursuant to the provision of this section after complying with the
provisions of section seventy-five of the civil service law.
§ 14-104 Juvenile bureau. a. There shall be a bureau in the department
organized and maintained for the prevention of crime and delinquency
among minors and for the performance of such other duties as the commis-
sioner may assign thereto.
b. Any member of the force assigned to such juvenile bureau shall
retain his or her rank and pay in the force and shall be eligible for
promotion as if serving in the uniformed force and the time served in
such bureau shall count for all purposes as if served in his or her rank
or grade in the uniformed force of the department.
§ 14-105 Bureau of taxis, limousines and liveries. The purpose of the
bureau of taxis, limousines and liveries shall be the continuance,
further development and improvement of taxi, limousine and livery
service in the city of Staten Island.
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It shall be the further purpose of the bureau, consonant with the
promotion and protection of the public comfort and convenience to adopt
and establish an overall public transportation policy governing taxi,
coach, limousine and wheelchair accessible van services as it relates to
the overall public transportation network of the city; to require the
filing of rates, standards of service, standards of insurance and mini-
mum coverage; standards for driver safety; standards for equipment safe-
ty and design; standards for noise and air pollution control; and to set
standards and criteria for the licensing of vehicles, drivers and chauf-
feurs, owners and operators engaged in such services.
§ 14-106 Jurisdiction, powers and duties of the bureau. 1. The juris-
diction, powers and duties of the bureau shall include the regulation
and supervision of the business and industry of transportation of
persons by licensed vehicles for hire in the city.
2. Such regulations and supervision shall extend to:
(a) The supervision of rates to be charged and collected.
(b) The regulation and supervision of standards and conditions of
service.
(c) The revocation and suspension of licenses for vehicles, other than
licenses issued pursuant to state law, provided, however, that taxicab
licenses represented by medallions heretofore issued shall in all
respects remain valid in accordance with their terms and transferable
according to law.
3. The bureau or an administrative tribunal which may be established
by the police commissioner to adjudicate charges of violations of
provisions of the administrative code, rules and regulations promulgated
thereunder and public complaints of discrimination or overcharging,
shall have the power to enforce its decisions and orders imposing civil
penalties, not to exceed ten thousand dollars for each respondent, for
violations relating to unlicensed vehicles for hire and unlicensed driv-
ers of vehicles for hire and for violations relating to the operation of
commuter van services without authorization and the operation of unli-
censed commuter vans and unlicensed drivers of commuter vans pursuant to
provisions of the administrative code.
Before a judgment based upon a default may be so entered the bureau or
administrative tribunal shall have first notified the respondent by
first class mail in such form as the bureau may direct (a) of the
default and order and the penalty imposed; (b) that a judgment will be
entered in the civil court of the city; and (c) that entry of such judg-
ment may be avoided by requesting a stay of default for good cause and
either requesting a hearing or entering a plea pursuant to the rules of
the bureau or administrative tribunal within thirty days of the mailing
of such notice.
Title 15 - Fire Prevention and Control
§ 15-101 Definitions; bureaus, divisions and offices. 1. For the
purposes of this title the following terms shall have the following
meanings:
(a) "Commissioner" shall mean the fire commissioner.
(b) "Department" shall mean the fire department.
2. In addition to such other bureaus, divisions and offices as the
commissioner may organize pursuant to section eleven hundred two of the
charter of the preceding municipality, there shall be in the department:
A. 10030 1150
(a) A fire bureau in the charge of the chief of the department which
shall have charge of the extinguishment of fires and the necessary and
incidental protection of life and property in connection therewith.
In such bureau there shall be a bureau of fire prevention and such
bureau shall be in the charge of a member of the uniformed force of the
department, of a rank above that of captain, to be designated by the
commissioner. Such bureau shall perform the duties and exercise the
powers of the commissioner in relation to (1) combustibles, chemicals,
explosives, flammables, or other dangerous substances, articles,
compounds or mixtures, (2) the prevention of fires or danger to life or
property therefrom, excluding provisions relating to structural condi-
tions and (3) protection against fire and panic, obstruction of aisles,
passageways and means of egress, standees, fire protection and fire
extinguishing appliances, and fire prevention in licensed places of
assembly. In the performance of their official duties, the uniformed and
civilian members of the bureau of fire prevention shall have the powers
and perform the duties of peace officers, but their power to make
arrests and serve process in criminal actions shall be restricted to
cases arising under laws relating to (1) the manufacture, storage, sale,
transportation or use of combustibles, chemicals, explosives, flammables
or other dangerous substances, articles, compounds or mixtures and the
control of fire hazards, (2) the prevention of fires or danger to life
or property therefrom, excluding provisions relating to structural
conditions and (3) fire perils.
(b) A chief and deputy chief fire marshal, appointed by the commis-
sioner, who shall be members of the department.
3. Notwithstanding any inconsistent provision of any general, special
or local law, or rule or regulation, a chief of the department shall not
serve in any other capacity to the department during his or her term of
office of chief. Any person violating the provisions of this section
shall be deemed to have vacated the office of chief so held.
§ 15-102 Commissioner. The head of the fire department shall be the
commissioner. The mayor may designate the chief of the fire department
to serve as commissioner, and shall exercise the powers and duties of
commissioner and shall receive the salary of the commissioner. While
serving as commissioner, the chief shall forfeit none of his or her
pension rights and privileges as chief or his or her civil service
status.
The commissioner may appoint deputies, one of whom may perform all the
duties and exercise all the powers of the commissioner except appoint-
ment or promotion, detail or dismissal of any member of the uniformed
force when authorized by instrument in writing to be filed in the
offices of the mayor and the comptroller.
The commissioner shall be the treasurer of the department and shall
file in the office of the comptroller a bond for the faithful perform-
ance of his or her duties as treasurer.
§ 15-103 Powers. The commissioner shall have sole and exclusive power
and perform all duties for the government, discipline, management, main-
tenance and direction of the fire department and the premises and prop-
erty, however the commissioner shall provide written notice with
supporting documentation at least forty-five days prior to the permanent
closing of any firehouse or permanent removal or relocation of any fire
fighting unit to the council members whose districts are served by such
facility and to the clerk of the council. The term "permanent" shall
mean a time period in excess of six months.
A. 10030 1151
The department shall have the sole and exclusive power and authority
to extinguish fires at any place within the jurisdiction of the city and
still have power and authority to extinguish fires upon any vessel in
the port of New York or upon any dock, wharf, pier, warehouse or other
structure bordering or adjacent to such port.
The commissioner shall have sole and exclusive jurisdiction over the
approval of the installation of all containers for combustibles, chemi-
cals, explosives, inflammable or other dangerous substances, except
storage tanks for oilburning equipment.
The commissioner shall have the sole and exclusive power to designate
and fix the location of all fire alarm telegraph, signal and alarm
stations in the city and to control the same for the purpose of the
department; except the commissioner shall give forty-five days notice to
council members whose districts are served by such equipment and to the
city clerk in the case of removal.
§ 15-104 Enforcement of fire laws. 1. The commissioner shall have the
power and it shall be his or her duty to enforce all laws and the rules
and regulations with respect to:
(a) the manufacture, storage, sale, transportation or use of combusti-
bles, chemicals or dangerous substances;
(b) investigation of the cause and origin of fires and suppression of
arson; and
(c) the prevention of fires or danger to life or property.
2. The commissioner shall have the power to cause any building, struc-
ture, tunnel, vessel or premises to be inspected for fire hazards by an
officer or employee of the department; and to inspect and test any auto-
matic or other fire alarm system or fire extinguishing equipment.
3. The commissioner shall have the power and it shall be his or her
duty to order in writing the remedying of any condition in violation of
any regulation which he or she is empowered to enforce. The commissioner
may take proceedings for the enforcement of any order of the commission-
er which is not complied with within the time fixed in the order for
such compliance to be enforced. Every order, requirement, decision or
determination of the commissioner shall be in writing.
4. The commissioner and his or her deputies and such other officers or
employees of the department as are authorized by the commissioner may
without fee or hindrance enter and inspect all buildings, premises,
vessels, structures and all underground passages of every sort in the
city or in the port of New York for compliance with provisions of law or
rules and regulations enforced by the department. Any refusal to permit
such entry or inspection shall be triable by a judge and punishable by
not more than thirty days imprisonment or by a fine of not more than
fifty dollars, or both.
§ 15-105 Other officer. No member of the uniformed force of the fire
department shall accept any additional place of public trust or civil
emolument.
The chief of the fire department shall not serve in any other capacity
to the department during his or her term of office or shall be deemed to
have vacated the office of chief.
Title 16 - Sanitation
Chapter 1
GENERAL
§ 16-101 Definitions. When used in this title the following terms
shall have the following meanings:
A. 10030 1152
1. "Department" shall mean the department of sanitation.
2. "Commissioner" shall mean the commissioner of sanitation.
3. "Street" includes street, avenue, road, alley, lane, highway,
boulevard, concourse, driveway, culvert and crosswalk, and every class
of road, square and place, and all parkways and through vehicular park
drives except a road within any park or a wharf, pier, bulkhead, or slip
by law committed to the custody, and control of the department of ports
and terminals.
§ 16-102 Commissioner. The head of the sanitation department shall be
the commissioner.
§ 16-103 Powers and duties of the commissioner. 1. The commissioner
shall have charge and control of and be responsible for all those func-
tions and operations of the city relating to the cleanliness of the
streets and the disposal of waste, including, without limitation, the
following:
(a) the sweeping, cleaning, sprinkling, flushing, washing and sanding
of the streets;
(b) the removal and disposition of ashes, street sweepings, garbage,
refuse, rubbish and waste;
(c) the removal of ice and snow from the streets;
(d) the removal of encumbrances from the streets and the storage or
disposal of such encumbrances, except that the mayor may provide by
regulation that the removal and storage of household effects or other
chattels shall be a responsibility of the department of general services
and contracting;
(e) plans, design, construction, operation, repair, maintenance,
enlargement and regulation of the use of incinerators, landfills and
other plants, facilities and equipment; and
(f) recovery and reuse of recyclable material.
2. The commissioner may adopt regulations specifying the kind of
ashes, garbage, refuse, rubbish or other material or substance that will
be collected by the city, the time when it will be collected and the
place at which it shall be deposited for collection.
3. The regulations shall be enforced by order of the commissioner.
Such order shall be addressed to the owner or owners, lessees or occu-
pants of the building, structure, enclosure, vessel, place or premises
affected thereby. It shall not be necessary to designate such owner or
owners, lessees or occupants by name, however the premises shall be
designated in the address so that it may be readily identified.
§ 16-104 Duties and obligations of property owner. The owner of any
property shall keep any vacant lot or lots in a clean and sanitary
manner and free of debris and other litter at the owner's expense. In
the event that an owner of property fails to comply with these
provisions, or rules and regulations, the department may provide for
cleaning of a vacant lot at the expense of the property owner.
Chapter 2
SOLID WASTE RECYCLING
§ 16-301 Short title. Sections 16-301 through 16-324 of this title
shall be known and may be cited as the "City of Staten Island Recycling
Law".
§ 16-302 Declaration of policy. It is hereby declared to be the public
policy of the city to reduce environmental pollution and dangers to
health, to decrease the demand for scarce landfill space, to minimize
the size and cost of the proposed resource recovery program, and to
A. 10030 1153
encourage the conservation of valuable natural resources and energy. It
is the policy of the city to promote the recovery of materials from the
city of Staten Island solid waste stream for the purpose of recycling
such materials and returning them to the economy. This title shall be
liberally construed in order to effectuate the purposes set forth in
this section.
§ 16-303 Definitions. When used in this title:
1. "Architectural paint" means interior and exterior architectural
coatings, including paints and stains purchased for commercial or resi-
dential use, but does not include architectural coatings purchased for
industrial use or for use in the manufacture of products.
2. "Organic waste" means any material found in the waste stream that
can be broken down into, or otherwise become part of, usable compost,
such as food scraps, soiled paper, and plant trimmings. As determined by
the commissioner, such term may also include disposable plastic food
service ware and bags that meet the ASTM International standard specifi-
cations for compostable plastics, but shall not include liquids and
textiles.
3. "Department-managed solid waste" means all solid waste that the
department and its contractors collect, all solid waste that the depart-
ment receives for free disposal, all solid waste collected for recycling
or reuse through special events or programs promoted, operated or funded
by the department, and all solid waste diverted from collection by the
department that is accepted through non-department infrastructure for
recycling or reuse and counted towards the department's recycling goals
as set forth in subdivision a of section 16-305 of this chapter.
4. "Household" means a single dwelling or a residential unit within a
multiple dwelling, hotel, motel, campsite, ranger station, public or
private recreation area, or other residence.
5. "Household and institutional compostable waste" means any composta-
ble waste, excluding yard waste, in or otherwise destined for any waste
stream collected by the department.
6. "Household hazardous waste" means:
a. any household waste that is ignitable, corrosive, reactive or toxic
and that, but for its point of generation, would be a hazardous waste
under part three hundred seventy-one of title six of the New York code,
rules and regulations, as may be amended from time to time, and includes
all pesticides, as defined in article thirty-three of the environmental
conservation law, and hazardous waste, as defined in section 27-0901 of
the environmental conservation law, as such laws may be amended from
time to time; and
b. any other household waste that the commissioner determines, by
rule, to be hazardous and require special handling.
7. "Post-collection separation" means the dividing of solid waste into
some or all of its component parts after the point of collection.
8. "Post-consumer material" means those products generated by a busi-
ness or a consumer which have served their intended end uses, and which
have been separated or diverted from solid waste for the purposes of
collection, recycling and disposition.
9. "Private carter" means any person required to be licensed or
permitted pursuant to chapter one of title sixteen-A of the code of the
preceding municipality.
10. "Publicly accessible textile drop-off bin" means any enclosed
container that allows for members of the public to deposit textiles into
such container for reuse or recycling in accordance with the textile
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reuse and recycling program established by section 16-310.1 of this
chapter.
11. "Recyclable materials" means solid waste that may be separated,
collected, processed, marketed and returned to the economy in the form
of raw paper, plastic, yard waste and any other solid waste required to
be recycled or composted pursuant to this chapter, solid waste collected
for recycling or reuse through special events or programs promoted,
operated or funded by the department, and solid waste accepted through
non-department infrastructure for recycling or reuse.
12. "Recycled" or "recycling" means any process by which recyclable
materials are separated, collected, processed, marketed and returned to
the economy in the form of raw materials or products.
13. "Recycling center" means any facility operated to facilitate the
separation, collection, processing or marketing of recyclable materials
for reuse or sale.
14. "Recycling district" means any borough or smaller geographic area
the commissioner deems appropriate for the purpose of implementing this
chapter.
15. "Rigid plastic container" means any plastic container having a
semi-flexible or inflexible finite shape or form that is capable of
maintaining its shape while holding other products and is designed to
hold food, beverages, and consumer household products, including, but
not limited to, the following types of containers: plastic bottles,
plastic jugs, plastic tubs, plastic trays, plastic cups, plastic buck-
ets, plastic crates and plastic flower pots, and any other rigid plastic
material that the commissioner may designate by rule, but not including
containers made of polystyrene foam.
16. "Solid waste" means all putrescible and non-putrescible materials
or substances, except as described in paragraph c of this subdivision,
that are discarded or rejected as being spent, useless, worthless or in
excess to the owners at the time of such discard or rejection, including
but not limited to, garbage, refuse, industrial and commercial waste,
rubbish, tires, ashes, contained gaseous material, incinerator residue,
construction and demolition debris, discarded automobiles and offal.
a. A material is discarded if it is abandoned by being:
i. disposed of;
ii. burned or incinerated, including being burned as a fuel for the
purpose of recovering useable energy; or
iii. accumulated, stored, or physically, chemically or biologically
treated, other than burned or incinerated, instead of or before being
disposed of.
b. A material is disposed of if it is discharged, deposited, injected,
dumped, spilled, leaked, or placed into or on any land or water so that
such material or any constituent thereof may enter the environment or be
emitted into the air or discharged into groundwater or surface water.
c. The following are not solid waste for the purpose of this chapter:
i. domestic sewage;
ii. any mixture of domestic sewage and other wastes that passes
through a sewer system to a publicly owned treatment works for treat-
ment, except (A) any material that is introduced into such system in
order to avoid the provisions of this chapter or the state regulations
promulgated to regulate solid waste management facilities pursuant to 6
NYCRR part 360 or (B) food waste;
iii. industrial wastewater discharges that are actual point source
discharges subject to permits under article seventeen of the environ-
mental conservation law; industrial wastewaters while they are being
A. 10030 1155
collected, stored, or treated before discharge and sludges that are
generated by industrial wastewater treatment are solid wastes;
iv. irrigation return flows;
v. radioactive materials that are source, special nuclear, or by-pro-
duct material as defined by the Atomic Energy Act of 1954, as amended,
42 U.S.C. § 2011 et seq.;
vi. materials subject to in-situ mining techniques which are not
removed from the ground as part of the extraction process;
vii. hazardous waste as defined in section 27-0901 of the environ-
mental conservation law; and
viii. regulated medical waste or other medical waste as described in
section 16-120.1 of this title.
17. "Source separation" means the dividing of solid waste into some or
all of its component parts at the point of generation.
18. "Yard waste" means leaves, grass clippings, garden debris, and
vegetative residue that is recognizable as part of a plant or vegetable,
small or chipped branches, and similar material.
Chapter 3
CITYWIDE RECYCLING PROGRAM
§ 16-305 Recycling of department-managed solid waste. 1. a. The
following recycling percentage goals are established for the recycling
of department-managed solid waste:
i. by July first, two thousand eleven, sixteen percent of department-
managed solid waste;
ii. by July first, two thousand thirteen, nineteen percent of depart-
ment-managed solid waste;
iii. by July first, two thousand fourteen, twenty-one percent of
department-managed solid waste;
iv. by July first, two thousand sixteen, twenty-four percent of
department-managed solid waste;
v. by July first, two thousand eighteen, twenty-seven percent of
department-managed solid waste;
vi. by July first, two thousand nineteen, thirty percent of depart-
ment-managed solid waste; and
vii. by July first, two thousand twenty, thirty-three percent of
department-managed solid waste.
b. In addition, the following recycling goals are established for
curbside and containerized waste collected by the department:
i. By July first, two thousand eleven, sixteen percent of curbside and
containerized waste collected by the department;
ii. By July first, two thousand thirteen, eighteen percent of curbside
and containerized waste collected by the department;
iii. By July first, two thousand fourteen, nineteen percent of curb-
side and containerized waste collected by the department;
iv. By July first, two thousand sixteen, twenty-one percent of curb-
side and containerized waste collected by the department;
v. By July first, two thousand eighteen, twenty-three percent of curb-
side and containerized waste collected by the department;
vi. By July first, two thousand nineteen, twenty-four percent of curb-
side and containerized waste collected by the department; and
vii. By July first, two thousand twenty, twenty-five percent of curb-
side and containerized waste collected by the department.
2. The commissioner shall adopt and implement rules designating at
least six recyclable materials, including plastics to the extent
A. 10030 1156
required in subdivision three of this section and yard waste to the
extent required in section 16-308 of this chapter and organic waste to
the extent required in section 16-308.1 of this chapter, contained in
department-managed solid waste and requiring households to source sepa-
rate such designated materials.
3. a. Prior to commencing delivery of department-managed recyclable
materials to the designated recycling processing facility at the South
Brooklyn Marine Terminal, the commissioner shall designate as recyclable
materials, and require the source separation of, rigid plastic contain-
ers.
b. If the commissioner, in his or her discretion, determines that the
cost to the city of recycling rigid plastic containers required to be
designated as recyclable materials pursuant to paragraph a of this
subdivision is not reasonable in comparison with the cost of recycling
only metal, glass and plastic and have been designated as recyclable
materials, the commissioner shall within ten business days notify and
provide documentation to the council of the factors relied upon to make
such determination and shall not be required to designate any such rigid
plastic containers as recyclable materials.
c. If the commissioner determines that the cost to the city of recycl-
ing rigid plastic containers is not reasonable in comparison with the
cost of recycling only metal, glass and plastic that have been desig-
nated as recyclable materials, the commissioner shall annually reevalu-
ate the cost to the city of designating such rigid plastic containers as
recyclable materials, and shall annually make a new determination as to
whether the cost of designating such containers as recyclable materials
is reasonable in comparison with the cost of recycling only metal, glass
and plastic that have been designated as recyclable materials and shall
report such evaluations to the council. The department shall not
promulgate rules designating rigid plastic containers as recyclable
materials, and need not conduct outreach or education relating thereto
if, pursuant to paragraph b of this subdivision, the commissioner deter-
mines that the cost to the city of recycling rigid plastic containers is
not reasonable in comparison with the cost of recycling only metal,
glass and plastic that have been designated as recyclable materials.
d. Immediately following the promulgation of rules designating rigid
plastic containers as recyclable materials, the department shall under-
take outreach and education, in cooperation with any other agency or
entity designated for that purpose by the commissioner, to inform resi-
dents of such new designation and to provide instruction on compliance
with the requirements of this subdivision and the rules promulgated
pursuant thereto.
4. The commissioner shall adopt and implement rules establishing
procedures requiring the placement of the designated materials at the
curbside, in specialized containers, or in any other manner the commis-
sioner determines, to facilitate the collection of such materials in a
manner that enables them to be recycled. Under such rules, no person
shall be liable for incorrectly placing a non-designated rigid plastic
container in the recycling stream.
5. Where the department provides solid waste collection services to a
building containing at least four and no more than eight dwelling units,
the commissioner shall adopt and implement rules requiring the owner,
net lessee or person in charge of such building to:
a. provide for the residents, where practicable, a designated area
and, where appropriate, containers in which to store the source sepa-
A. 10030 1157
rated or other designated recyclable materials to be collected by the
department; and
b. inform all residents of the requirements of this chapter and the
rules promulgated pursuant thereto by, at a minimum, posting
instructions on source separation in or near the designated recycling
area and making available to each resident at the inception of a lease,
where applicable, a department-issued guide to recycling, which shall be
made available to the owner, net lessee or person in charge of such
building by the department pursuant to section 16-315 of this chapter in
print form or on the department's website, or in an alternative guide
containing similar information to the guide required by section 16-315
of this chapter.
If reasonably accessible space for the storage of source separated or
other designated recyclable materials is not available in such building,
and such space is available behind the building's property line, such
space behind the property line may be designated as the area for the
storage of source separated or other designated recyclable materials. If
no such space is available, the owner, net lessee or person in charge of
such building shall post instructions on recycling and source separation
in or near a designated area that is visible to all residents in the
building.
With respect to solid waste generated by households in the aforesaid
buildings, the obligations of an owner, net lessee or person in charge
of such building under this chapter shall be limited to those set forth
in this subdivision and subdivisions four and seven of this section or
rules promulgated pursuant to such subdivisions.
6. Where the department provides solid waste collection services to a
building containing nine or more dwelling units, the commissioner shall
adopt and implement rules requiring the owner, net lessee or person in
charge of such building to:
a. provide for the residents a designated area and, where appropriate,
containers in which to store the source separated or other designated
recyclable materials to be collected by the department;
b. inform all residents of the requirements of this chapter and the
rules promulgated pursuant thereto by, at a minimum, posting
instructions on source separation in or near the designated recycling
area, and making available to each resident at the inception of a lease,
a department-issued guide to recycling, which shall be made available to
the owner, net lessee or person in charge of such building by the
department pursuant to section 16-315 of this chapter in print form or
on the department's website, or in an alternative guide containing simi-
lar information to the guide required by section 16-315 of this chapter;
and
c. remove non-designated materials from the containers of designated
source separated recyclable materials before such containers are placed
at the curbside for collection and ensure that the designated materials
are placed at the curbside in the manner prescribed by the department.
With respect to solid waste generated by households in the aforesaid
buildings, the obligations of an owner, net lessee or person in charge
of such building under this chapter shall be limited to those set forth
in this subdivision and subdivisions four and seven of this section or
rules promulgated pursuant to such subdivisions.
7. The commissioner shall adopt and implement rules for any building
containing four or more dwelling units in which the amount of designated
materials placed out for collection is significantly less than what can
reasonably be expected from such building. These rules shall require
A. 10030 1158
residential generators, including tenants, owners, net lessees or
persons in charge of such building to use transparent bags or such other
means of disposal the commissioner deems appropriate to dispose of solid
waste other than the designated recyclable materials. Upon request of
the owner, net lessee or person in charge of such building, and if the
commissioner determines that such owner, net lessee or person in charge
of such building has complied with this subdivision, subdivision four of
this section and, as applicable, subdivision five or subdivision six of
this section or rules promulgated pursuant to such subdivisions and that
the amount of designated materials placed out for collection remains
significantly less than what can reasonably be expected from such build-
ing, the department may develop a schedule to conduct random inspections
to facilitate compliance with the provisions of this chapter by tenants
of such building, provided that lawful inspections may occur at reason-
able times without notice to ensure compliance by the tenants, owner,
net lessee or person in charge of such building.
8. a. In calculating the extent to which the department has met the
recycling percentage goals set forth in paragraph a of subdivision one
of this section, the department shall include in its calculations all
curbside and institutional recycling it collects, including materials
collected from households, schools, not-for-profit institutions and city
agencies, and all recyclable materials collected as part of the public
space recycling program pursuant to section 16-310 of this chapter, and
may include yard waste collected pursuant to section 16-308 of this
chapter and any other material collected for composting pursuant to this
chapter, Christmas trees collected pursuant to section 16-309 of this
chapter, clothing and textiles donated or collected pursuant to section
16-310.1 of this chapter, household hazardous waste diverted pursuant to
section 16-310.3 of this chapter, rechargeable batteries collected
pursuant to chapter four of title eleven of the code of the preceding
municipality, beverage containers returned within the city pursuant to
title ten of article twenty-seven of the environmental conservation law,
electronic waste collected within the city or otherwise diverted from
the city's waste stream, including such waste collected or diverted
pursuant to title twenty-six of article twenty-seven of the environ-
mental conservation law, and plastic bags collected within the city or
otherwise diverted from the city's waste stream, including such plastic
bags collected or diverted pursuant to title twenty-seven of article
twenty-seven of the environmental conservation law. Only recyclable
materials specifically enumerated in this paragraph shall be counted for
purposes of calculating the extent to which the department has met the
recycling percentage goals set forth in paragraph a of subdivision one
of this section.
b. In calculating the extent to which the department has met the recy-
cling percentage goals set forth in paragraph b of subdivision one of
this section, the department shall include in its calculations all curb-
side and institutional recycling it collects, including materials
collected from households, schools, not-for-profit institutions and city
agencies, and all recyclable materials collected as part of the public
space recycling program pursuant to section 16-310 of this chapter.
c. In calculating the extent to which the department has met the recy-
cling percentage goals set forth in paragraphs a and b of subdivision
one of this section, the department shall not include recycling of aban-
doned vehicles or recycling from lot cleaning operations, asphalt and
mill tailings, construction and demolition debris or other commercial
recycling programs. The commissioner shall not designate any such mate-
A. 10030 1159
rials as recyclable materials under this section for purposes of calcu-
lating the extent to which the department has met such recycling
percentage goals.
d. In calculating the percent of the department-managed solid waste
stream recycled in connection with the percentage goals set forth in
paragraph a of subdivision one of this section, the department shall
ensure that any quantity of material counted as recycled must be fully
included in the calculation of the city's total department-managed solid
waste stream.
e. All data used to make calculations pursuant to paragraphs a and b
of this subdivision shall be made available on the department's website
in raw form disaggregated by material type and using a non-proprietary
format on a monthly basis, or, if such data is not generated by the
department, within one month from the date that the department receives
reports of such information.
9. In the event that the department does not meet any recycling
percentage goal set forth in paragraphs a or b of subdivision one of
this section by the dates specified therein, the department shall, with-
in sixty days of the date for meeting such goal, expand recycling
outreach and education and shall take such other appropriate measures
including, but not limited to, directing such outreach and education to
the neighborhoods and community districts in which recycling diversion
rates fall below the median city recycling diversion rate and consulting
with the council to explore additional measures to meet the recycling
percentage goals set forth in such subdivision. In expanding recycling
outreach and education, the department may work with other agencies or
entities designated for that purpose by the commissioner.
10. In the event that the department is unable to achieve two consec-
utive recycling percentage goals set forth in paragraphs a and b of
subdivision one of this section by the dates specified therein, in addi-
tion to the requirements of subdivision nine of this section, the
commissioner shall retain a special advisor, who shall be selected by
the mayor and the speaker, provided that the commissioner need not
retain such special advisor more than once every three years. Within one
hundred twenty days of such retention, such adviser shall submit a
report to the mayor and council recommending additional measures that
may be taken by the city following such report in order to meet such
recycling percentage goals.
§ 16-305.1 Weekly collection of designated recyclable materials. 1.
Weekly collection of designated recyclable materials shall be maintained
in all local service delivery districts.
2. Effective July first, two thousand nine, and notwithstanding any
inconsistent provision of this chapter, the department shall be author-
ized, by written order of the commissioner, to implement and maintain
alternate week collection of designated recyclable materials in all
local service delivery districts, provided that the department may, by
written order of the commissioner, provide for more frequent collection
of designated recyclable materials in designated local service delivery
districts. Any such written order of the commissioner implementing
alternate week collection shall expire no later than March thirty-first,
two thousand ten.
3. For purposes of this section "designated recyclable materials"
shall mean solid waste that has been designated by the commissioner as
recyclable pursuant to section 16-305, section 16-307, or section
16-308.1 of this chapter.
A. 10030 1160
4. Nothing in this section shall be construed to require collection of
designated recyclable materials in such parts of the city or during such
times of the year that such materials are not otherwise collected.
§ 16-306 Private carter-collected waste. 1. The commissioner shall
adopt and implement rules designating recyclable materials that consti-
tute in the aggregate at least one-half of all solid waste collected by
private carters, and additional materials if the commissioner determines
that economic markets exist for them. Pursuant to subdivision two of
this section, such rules shall require generators of private carter-col-
lected waste to source separate some or all of the designated materials
and to arrange for lawful collection for recycling, reuse or sale for
reuse by private carters or persons other than private carters of such
source separated materials. With regard to designated materials that are
not required by such rules to be source separated, generators of private
carter-collected waste may source separate these designated materials
and, in any event, shall arrange for their lawful collection for recycl-
ing, reuse or sale for reuse by private carters or persons other than
private carters. If a generator of private carter-collected waste has
source separated the designated materials in accordance with the rules
and arranged for the lawful collection for recycling, reuse or sale for
reuse by private carters or persons other than private carters of such
source separated materials and, with regard to designated materials that
are not required by such rules to be source separated, arranged for
lawful collection for recycling, reuse or sale for reuse by private
carters or persons other than private carters, such arrangement shall
constitute an affirmative defense to any proceeding brought against the
generator pursuant to section 16-324 of this title.
2. (a) The rules promulgated pursuant to subdivision one of this
section shall require that generators of waste collected by businesses
required to be licensed pursuant to section 16-505 of the code of the
preceding municipality source separate the designated materials in such
manner and to such extent as the commissioner determines to be necessary
to minimize contamination and maximize the marketability of such materi-
als. However, in promulgating such rules the commissioner shall not
require source separation of a material unless the commissioner has
determined that an economic market exists for such material. For the
purpose of this section, the term "economic market" refers to instances
in which the full avoided costs of proper collection, transportation and
disposal of source separated materials are equal to or greater than the
cost of collection, transportation and sale of said materials less the
amount received from the sale of said materials.
(b) (i) Any designated carter that collects source separated desig-
nated materials in a commercial waste zone pursuant to section 16-1002
of the code of the preceding municipality shall provide for the
collection of, and ensure the continued separation of, designated mate-
rials that have been source separated, provide for the separation of all
other designated materials, and provide for recycling of all the desig-
nated materials in accordance with the rules of the department and the
terms of any agreement entered into pursuant to section 16-1002 of the
code of the preceding municipality under which such designated carter is
providing such service.
(ii) Any person registered by the business integrity commission to
remove, collect, or dispose of trade waste generated in the course of
operation of such person's business pursuant to subdivision b of section
16-505 of the code of the preceding municipality shall provide for the
collection of, and ensure the continued separation of, designated mate-
A. 10030 1161
rials that have been source separated, provide for the separation of all
other designated materials, and provide for recycling of all the desig-
nated materials in accordance with the rules promulgated by the business
integrity commission pursuant to this section and subject to the penal-
ties provided in subdivision a of section 16-515 of the code of the
preceding municipality.
(c) The commissioner and the chair of the business integrity commis-
sion shall have the authority to issue notices of violation for any
violation of any rules promulgated pursuant to this section and such
notices of violation shall be returnable in a civil action brought in
the name of the commissioner or the chair of the business integrity
commission before the environmental control board which shall impose a
penalty not to exceed ten thousand dollars for each such violation.
3. The department shall complete a study of commercial recycling in
the city no later than January first, two thousand twelve. Such commer-
cial recycling study shall focus on the putrescible portion of the
commercial waste stream, and shall include, but need not be limited to,
the following: (a) an integration of all data on commercial waste in the
city collected and transported through transfer stations and recycling
processors; (b) an assessment of current practices, operations and
compliance with applicable local laws and rules, consistent with the
scope of study set forth in the two thousand six Solid Waste Management
Plan; (c) estimates of waste composition and recycling diversion rates
from research conducted with respect to other jurisdictions; (d) a
computer-based model to measure the amount and composition of waste
generated by different commercial sectors; (e) recommendations of meth-
ods to encourage waste prevention, reuse, recycling and composting for
each of the commercial sectors studied, including any recommended chang-
es to applicable law; and (f) an assessment of the efficiency of the
transportation of commercial waste within the commercial system by,
among other things, mapping and monitoring routes along which commercial
waste and recycling trucks travel, including long-haul carriers within
and outside the city. Following completion of the commercial recycling
study, the commissioner shall determine whether any additional studies
are necessary in order to improve commercial recycling practices in the
city and shall promptly report such determination to the mayor and the
council.
4. Notwithstanding any other provision of law, nothing in this section
shall be construed to (a) supersede, amend or eliminate any obligation
of an awardee or designated carter, as such terms are defined in section
16-1000 of the code of the preceding municipality, to meet the require-
ments set forth in any applicable agreement entered into pursuant to
section 16-1002 of the code of the preceding municipality, or (b) other-
wise amend or supersede any term of such agreement.
§ 16-306.1 Organic waste. 1. When used in this section or section
16-324 of this chapter:
a. "Arena" means an establishment or facility that hosts live sporting
or entertainment events.
b. "Capacity" means the combined capacity of facilities that are capa-
ble of accepting and processing, consistent with the terms of this
section and exceeding a nominal amount, organic waste expected to be
generated by and collected from designated covered establishments.
c. "Catering establishment" means any room, place or space in the
city, which is used, leased or hired out for the business of serving
food or beverages for a particular function, occasion or event, to which
A. 10030 1162
the public is not invited or admitted and wherein music or entertainment
is permitted.
d. "Covered establishment" means:
(i) any location at which a food manufacturer has a floor area of at
least twenty-five thousand square feet;
(ii) any location at which a food wholesaler has a floor area of at
least twenty thousand square feet;
(iii) any location at which a retail food store has a floor area of at
least ten thousand square feet, or any retail food store that is part of
a chain of three or more retail food stores that have a combined floor
area space of at least ten thousand square feet and that operate under
common ownership or control and receive waste collection from the same
private carter;
(iv) arenas or stadiums having a seating capacity of at least fifteen
thousand persons;
(v) any food service establishment that is part of a chain of two or
more food service establishments that have a combined floor area of at
least eight thousand square feet and that: (1) operate under common
ownership or control; (2) are individually franchised outlets of a
parent business; or (3) do business under the same corporate name,
provided that the requirements of subparagraph (i) of paragraph a of
subdivision three of this section shall not apply to any such food
service establishment when the building or premises in which such food
service establishment is located is in compliance with such requirement
pursuant to paragraph h of this definition;
(vi) any location at which a food service establishment has a floor
area of at least seven thousand square feet, provided that the require-
ments of subparagraph (i) of paragraph a of subdivision three of this
section shall not apply to any such location when the building or prem-
ises containing such location is in compliance with such requirement
pursuant to paragraph g of this subdivision;
(vii) any building or premises where food service establishments
having a total combined floor area of at least eight thousand square
feet are located and where the owner of the building or premises, or its
agent, arranges or contracts with a private carter for the removal of
waste from food service establishments having no less than eight thou-
sand square feet of such building or premises, provided that any such
food service establishments shall comply with the requirements of
subparagraphs (ii), (iii) and (iv) of paragraph a of subdivision three
of this section, but such requirements shall not apply to the owner or
agent of any such building or premises;
(viii) any location at which a food preparation establishment has a
floor area of at least six thousand square feet;
(ix) any catering establishment that is required to provide for the
removal of waste pursuant to section 16-116 of the code of the preceding
municipality whenever the anticipated attendance for any particular
event is greater than one hundred persons;
(x) any food service establishments located within and providing food
to one or more hotels totaling at least one hundred sleeping rooms; and
(xi) sponsors of a temporary public event.
e. "Designated area" means within a one hundred mile radius of the
city.
f. "Food manufacturer" means any establishment that processes or
fabricates food products from raw materials for commercial purposes,
provided that it shall not include any establishment engaged solely in
the warehousing, distribution or retail sale of product.
A. 10030 1163
g. "Food preparation establishment" means a business that is primarily
engaged in providing food or food services for a temporary, fixed time,
or based on contractual arrangements for a specified period of time at
locations other than such establishment's permanent place of business.
h. "Food service establishment" means any premises or part of a prem-
ises that is required to provide for the removal of waste pursuant to
section 16-116 of the code of the preceding municipality where food is
provided directly to the consumer, whether such food is provided free of
charge or sold, and whether consumption occurs on or off the premises.
Food service establishment shall include, but not be limited to, full-
service restaurants, fast food restaurants, cafes, delicatessens, coffee
shops, and business, institutional or government agency cafeterias, but
shall not include retail food stores, convenience stores, pharmacies,
and mobile food vending units, as such term is defined in section 89.03
of the health code. Food service establishment shall also not include
any premises or place of business where the sole or primary source of
food is a refreshment counter where the available food is limited to
items such as beverages, prepackaged items, and snacks.
i. "Food wholesaler" means any establishment primarily engaged in the
wholesale distribution of groceries and related products including, but
not limited to, packaged frozen food, dairy products, poultry products,
confectioneries, fish and seafood, meat products, and fresh fruits and
vegetables but shall not apply to establishments that handle only pre-
packaged, non-perishable foods.
j. "Hotel" shall have the same meaning as set forth in section 27-2004
of the housing maintenance code.
k. "In vessel composting" means a process in which organic waste is
enclosed in a drum, silo, bin, tunnel, reactor, or other container for
the purpose of producing compost, maintained under controlled conditions
of temperature and moisture and where air-borne emissions are
controlled.
l. "Organic waste" shall have the same meaning as set forth in section
16-303 of this title, except that for purposes of this section, organic
waste shall not include food that is donated to a third party, food that
is sold to farmers for feedstock, and meat by-products that are sold to
a rendering company.
m. "Private carter" means a business licensed by the business integri-
ty commission pursuant to title sixteen-A of the code of the preceding
municipality.
n. "Retail food store" means any establishment or section of an estab-
lishment where food and food products offered to the consumer are
intended for off-premises consumption, but shall exclude convenience
stores, pharmacies, greenmarkets or farmers' markets and food service
establishments.
o. "Sponsor of a temporary public event" means the applicant for a
street activity permit pursuant to chapter one of title fifty of the
rules of the city of New York, or any successor provision, for any
activity on a public street, street curb lane, sidewalk or pedestrian
island or plaza with an anticipated attendance of greater than five
hundred persons per day where the activity will interfere with or
obstruct the regular use of the location by pedestrian or vehicular
traffic. Such term shall not include activities conducted pursuant to a
valid film permit, demonstrations, parades or block parties.
p. "Stadium" means an establishment or facility that hosts live sport-
ing or entertainment events.
A. 10030 1164
2. The commissioner shall, on a regular basis and no less than annual-
ly, evaluate the capacity of all facilities within the designated area
and the cost of processing organic waste by composting, aerobic or anae-
robic digestion, or any other method of processing organic waste that
the department approves by rule. If the commissioner determines that
there is sufficient capacity and that the cost of processing organic
waste consistent with this section is competitive with the cost of
disposing of organic waste by landfill or incineration, he or she shall
designate by rule all covered establishments or a subset of covered
establishments, based on any criteria, among such covered establish-
ments, that generate a quantity of organic waste that would not exceed
the evaluated capacity. All such designated covered establishments shall
comply with the requirements of subdivision three of this section begin-
ning no later than six months following such designation. In addition,
the commissioner shall include in his or her evaluation the capacity of
any facilities outside of the designated area that have arrangements or
contracts with transfer stations or private carters to accept and proc-
ess organic waste generated by and collected from covered establish-
ments.
3. a. Each designated covered establishment shall:
(i) either (1) ensure collection by a private carter of all organic
waste generated by such establishment for purposes of composting, aero-
bic or anaerobic digestion, or any other method of processing organic
waste that the department approves by rule, (2) transport its own organ-
ic waste to a facility that provides for composting, aerobic or anaero-
bic digestion, or any other method of processing organic waste that the
department approves by rule, provided that the covered establishment
first obtains a registration issued by the business integrity commission
pursuant to subdivision b of section 16-505 of the code of the preceding
municipality, or (3) provide for on-site in vessel composting, aerobic
or anaerobic digestion, or any other method of processing organic waste
that the department approves by rule for some or all of the organic
waste it generates on its premises, provided that it arranges for the
collection or transport of the remainder of such organic waste, if any,
in accordance with clause one or two of this subparagraph;
(ii) post a sign, which shall be in addition to any other sign
required to be posted pursuant to this code, that states clearly and
legibly the trade or business name, address, and telephone number of,
and the day and time of pickup by, the private carter that collects the
covered establishment's organic waste, that such covered establishment
transports its own organic waste, or that such covered establishment
provides for on-site processing for all of the organic waste it gener-
ates on its premises, provided that:
(1) such sign shall be prominently displayed by affixing it to a
window near the principal entrance to the covered establishment so as to
be easily visible from outside the building or, if this is not possible,
prominently displayed inside the covered establishment near the princi-
pal entrance;
(2) catering establishments shall not be required to display on such
sign the day and time of the pickup by the private carter that collects
the establishment's organic waste; and
(3) this paragraph shall not apply to sponsors of temporary public
events;
(iii) provide separate bins for the disposal of organic waste in any
area where such organic waste is generated and disposed of; and
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(iv) post instructions on the proper separation of organic waste where
such instructions will be visible to persons who are disposing of organ-
ic waste, provided that this subparagraph shall not apply to sponsors of
temporary public events.
b. Any covered establishment that arranges for the collection by a
private carter of its organic waste pursuant to this subdivision shall
not commingle such organic waste with other designated and non-designat-
ed recyclable material or solid waste, and shall place such organic
waste out for collection by a private carter in a container or contain-
ers that (i) has a lid and a latch that keeps the lid closed and is
resistant to tampering by rodents or other wildlife, (ii) has the capac-
ity that meets the disposal needs of the covered establishment and its
private carter, (iii) is compatible with the private carter's hauling
collection practices, and (iv) is closed and latched at the time it is
placed out for collection.
4. Any private carter that collects source separated organic waste
shall either:
a. deliver collected organic waste to a transfer station that has
represented that it will deliver such organic waste to a facility for
purposes of composting, aerobic or anaerobic digestion, or any other
method of processing organic waste that the department approves by rule;
or
b. deliver such organic waste directly to a facility for purposes of
composting, aerobic or anaerobic digestion, or any other method of proc-
essing organic waste that the department approves by rule.
5. Any transfer station that receives source separated organic waste
pursuant to this section shall deliver or have delivered such organic
waste directly to a facility that accepts organic waste for purposes of
composting, aerobic or anaerobic digestion, or any other method of proc-
essing organic waste that the department approves by rule. This subdivi-
sion shall not apply to waste that cannot be processed at an organic
waste processing facility.
6. The provisions of this section relating to private carters shall be
enforced by the business integrity commission and the department. The
provisions of this section relating to covered establishments shall be
enforced by the department, the department of health and mental hygiene,
and the department of consumer and worker protection.
7. The department, the business integrity commission, the department
of health and mental hygiene, and the department of consumer affairs may
promulgate any rules necessary to implement this section, including, but
not limited to, rules establishing reporting requirements sufficient to
demonstrate compliance with this chapter.
8. Any person who owns or operates two or fewer food service estab-
lishments may request, and the commissioner shall grant, a waiver of the
requirements of this section if: a. no single food service establishment
has a floor area of at least seven thousand square feet; b. the food
service establishment or establishments are individually franchised
outlets of a parent business covered by paragraph d of the definition of
"covered establishment" set forth in subdivision one of this section;
and c. the owner or operator establishes that such food service estab-
lishment or establishments do not receive private carting services
through a general carting agreement between a parent business and a
private carter. Such waiver shall be valid for twelve months and shall
be renewable upon application to the commissioner via the department's
website.
A. 10030 1166
§ 16-307 City agency waste. 1. The commissioner shall adopt, amend and
implement rules, as necessary, governing the source separation or post-
collection separation, collection, processing, marketing, and sale of
designated recyclable materials including, but not limited to, desig-
nated metal, glass, plastic and paper generated by any agency, as such
term is defined in section 1-112 of the code of the preceding munici-
pality.
2. Every agency shall, no later than July first, two thousand eleven,
prepare and submit to the commissioner for approval, a waste prevention,
reuse and recycling plan. Such plan shall provide for the source sepa-
ration of designated metal, glass, plastic and paper, and such other
designated recyclable materials as the commissioner deems appropriate,
in all offices and buildings occupied by agencies that receive
collection service from the department and, to the extent practicable,
in those that receive private carter collection. Such plans shall
provide for the source separation of designated recyclable materials in
the lobbies of such offices or buildings that receive department
collection, unless the placement of bins for the source separation of
designated recyclable materials would be in violation of any other
provision of law, and, to the extent practicable, in the lobbies of such
offices or buildings that receive private carter collection. Each agency
shall designate a lead recycling or sustainability coordinator to over-
see implementation of such plans. If an agency has offices in more than
one city-owned building, then such agency shall designate one assistant
coordinator for each building in which such agency has offices, except
the building in which the lead coordinator has his or her office, to
assist the agency's lead coordinator.
3. On or before July first, two thousand twelve and annually thereaft-
er, every lead recycling or sustainability coordinator shall submit a
report to the head of his or her respective agency and to the commis-
sioner, summarizing actions taken to implement the waste prevention,
reuse and recycling plan for the previous twelve-month reporting period,
proposed actions to be taken to implement such plan, and updates or
changes to any information included in such plan. The department shall
consolidate the information contained in all reports prepared pursuant
to this subdivision as part of the department's annual zero waste report
required pursuant to subdivision b of section 16-316.5 of the code of
the preceding municipality.
§ 16-307.1 School recycling. 1. The chancellor of the department of
education shall designate a sustainability director for the department
of education, who shall be responsible for (a) setting policies, guide-
lines and goals to promote waste prevention, reuse and recycling prac-
tices, and (b) coordinating the department of education's waste
prevention, reuse and recycling program in all school buildings, charter
school locations, office buildings, and any other facilities under the
jurisdiction of the department of education that receive department
collection service.
2. The chancellor of the department of education shall promulgate such
rules as may be necessary to require that each school building, charter
school location, office building, and any other facility under the
jurisdiction of the department of education that receives department
collection service, develop a site-specific waste prevention, reuse and
recycling plan. Each such plan shall be implemented by January first,
two thousand eleven. Such plan shall include, at a minimum, a require-
ment that each classroom maintain a separate receptacle, container or
bin for the collection of designated recyclable paper, and that such
A. 10030 1167
receptacle, container or bin be appropriately labeled or decorated with
recycling information. Such plan shall also provide that separate recep-
tacles, containers or bins for the collection of designated metal, glass
and plastic be appropriately labeled or decorated with recycling infor-
mation and be placed as close as practicable to school entrances, unless
the placement of such bins would be in violation of any other provision
of law, and in locations within schools where food and beverages are
routinely consumed.
3. The principal of each school under the jurisdiction of the depart-
ment of education shall designate a sustainability coordinator for his
or her school who shall be responsible for implementing his or her
school's waste prevention, reuse and recycling plan. The principal or
the sustainability coordinator shall complete, and submit to the depart-
ment of education sustainability director and to the chancellor, an
annual survey regarding such school's compliance with its waste
prevention, reuse and recycling plan.
4. The chancellor shall submit a report to the commissioner by January
first of each year regarding compliance with the requirements of this
section for the preceding July first through June thirtieth. The depart-
ment shall include the chancellor's report as part of the department's
annual zero waste report required pursuant to subdivision b of section
16-316.5 of the code of the preceding municipality.
5. The department shall distribute a model school waste prevention,
reuse and recycling plan to all primary and secondary schools not under
the jurisdiction of the department of education that receive department
collection service. All such primary and secondary schools shall desig-
nate a sustainability coordinator for each such school, and develop a
site-specific waste prevention, reuse and recycling plan. Each such plan
shall be implemented by January first, two thousand eleven. Such plan
shall include, at a minimum, a requirement that each room used primarily
as a classroom for students between kindergarten and the twelfth grade
maintain a separate receptacle, container or bin for the collection of
designated recyclable paper, and that such receptacle, container or bin
be appropriately labeled or decorated with recycling information. Such
plan shall also provide that separate receptacles, containers or bins
for the collection of designated metal, glass and plastic be appropri-
ately labeled or decorated with recycling information and be placed as
close as practicable to school entrances, unless the placement of such
bins would be in violation of any other provision of law. Such bins
shall also be placed in centralized locations within such schools where
food and beverages are routinely consumed, other than classrooms, such
as cafeterias and lunchrooms, or, if such school lacks a cafeteria or
lunchroom, in a location readily accessible to all students in such
school.
§ 16-307.2 City agency food waste prevention plans. 1. Definitions.
As used in this section, the following terms have the following mean-
ings:
a. Covered agency. The term "covered agency" means an agency that has
entered into at least one food purchase contract within the previous
twelve months.
b. Food purchase contract. The term "food purchase contract" means:
(i) a contract entered into by an agency in excess of the small purchase
limits established by the procurement policy board, the principal
purpose of which is to provide food, provided that such contract author-
izes purchases only by the agency that entered into such contract, or
A. 10030 1168
(ii) a purchase order for food the value of which exceeds one hundred
thousand dollars, made by an agency against an existing contract.
c. Surplus food. The term "surplus food" means any food obtained
through a food purchase contract that is not used for the purpose for
which it was purchased and that would otherwise be discarded.
2. Agency food waste prevention plan. Every covered agency shall, no
later than October first, two thousand twenty-one, prepare and submit to
the commissioner for approval, a food waste prevention plan. Any agency
that becomes a covered agency after October first, two thousand twenty-
one shall prepare and submit to the commissioner for approval, a food
waste prevention plan within ninety days of becoming a covered agency.
The commissioner shall submit each approved agency food waste prevention
plan to the speaker of the council not later than seven days after such
approval. Such plan shall conform to all applicable provisions of law
and, at a minimum:
a. Establish guidelines for how to identify surplus food that may be
safely donated;
b. Identify methods to reduce the amount of surplus food, including
the utilization of the food donation web portal described in section
16-497 of the code of the preceding municipality, when appropriate;
c. Set forth procedures for the safe, efficient donation of surplus
food; and
d. Include any other provisions necessary to facilitate the reduction
of surplus food and the donation of surplus food.
3. Food waste prevention coordinator. Upon approval of an agency's
food waste prevention plan by the commissioner, each covered agency
shall designate a coordinator to oversee implementation of the plan
required by subdivision two of this section.
4. Report. a. On or before January first, two thousand twenty-two, and
annually thereafter for the previous twelve-month reporting period, each
covered agency shall submit a report to the commissioner. Such report
shall include, at a minimum:
i. A summary of the actions taken to implement the agency's food waste
prevention plan;
ii. Any proposed additional actions to be taken to implement such
plan; and
iii. Any updates or changes to any information included in such plan.
b. The department shall consolidate the information contained in all
reports prepared pursuant to this subdivision and include such informa-
tion as part of the department's annual zero waste report required
pursuant to subdivision b of section 16-316.5 of the code of the preced-
ing municipality.
§ 16-307.3 School food waste. 1. Definitions. As used in this section,
the following terms have the following meanings:
a. Chancellor. The term "chancellor" means the chancellor of the city
school district of the city of New York.
b. Food purchase contract. The term "food purchase contract" means any
purchase order or contract entered into by the department of education,
the principal purpose of which is to provide food, and the value of
which exceeds one hundred thousand dollars.
c. School. The term "school" means a school of the city school
district of the city of New York.
d. Surplus food. The term "surplus food" means any food obtained
through a food purchase contract that is not used for the purpose for
which it was purchased and that would otherwise be discarded.
A. 10030 1169
2. Food waste prevention plan. No later than October first, two thou-
sand twenty-one, the chancellor shall prepare and submit to the commis-
sioner a food waste prevention plan. Preparation of such food waste
prevention plan shall provide school sustainability coordinators desig-
nated pursuant to subdivision three of section 16-307.1 of this chapter
an opportunity to offer ideas concerning food waste prevention. Such
plan shall conform to all applicable provisions of law and include, but
need not be limited to, the following information:
a. Guidelines for how to identify surplus food that may be safely
donated;
b. Any methods the chancellor has identified to reduce the amount of
surplus food in schools;
c. Any procedures the chancellor has identified that would allow the
department of education or a school to donate surplus food safely and
efficiently; and
d. Any barriers the chancellor has identified that would prevent the
safe and efficient donation of surplus food.
3. Review by commissioner. The commissioner shall review the plan
required pursuant to subdivision two of this section within ninety days
of its submission and shall submit recommendations on the plan to the
chancellor. The commissioner shall simultaneously submit a copy of the
chancellor's plan and the commissioner's recommendations to the speaker
of the council.
4. Report. On or before February first, two thousand twenty-two, the
chancellor shall submit a report to the commissioner. Such report shall
include, at a minimum:
a. A summary of actions taken to implement the food waste prevention
plan;
b. A summary of actions that the chancellor proposes be taken to
implement such plan; and
c. Any updates or changes to any information included in such plan.
§ 16-308 Organic waste. 1. The commissioner shall provide for the
source separation, collection and composting of yard waste, unless the
generator otherwise provides for recycling or storage for composting or
mulching. In addition, the commissioner shall provide for the collection
and composting of yard waste generated and source separated at residen-
tial properties owned or operated by the New York city housing authori-
ty. There shall be operated by or on behalf of the department one or
more yard waste composting facilities through which the department shall
compost yard waste collected by or delivered to the department pursuant
to this section. In order to comply with this provision, the department
may utilize the services of privately-owned or operated facilities. The
department shall also work in consultation with the composting facility
siting task force established by the two thousand six solid waste
management plan to identify additional locations to site yard waste
composting facilities with the goal of establishing at least one such
composting facility in each borough where the department conducts yard
waste composting collection.
2. Any city agency, or person under contract with a city agency, that
generates a substantial amount of yard waste shall, in coordination with
the department, provide for the source separation, collection and
composting of such yard waste. Unless otherwise provided by law, the
department shall accept for composting any city agency yard waste source
separated for department collection pursuant to this subdivision.
3. No landfill, waste transfer station, intermodal facility, incinera-
tor or resource recovery facility owned, operated or used by the depart-
A. 10030 1170
ment shall accept truck loads of department-managed waste primarily
composed of yard waste for final disposal, except that composted yard
waste may be used as part of the final vegetative cover for a department
landfill.
4. All city agencies responsible for the maintenance of public lands
shall to the maximum extent practicable and feasible give preference to
the use of compost materials derived from the city's yard waste in all
land maintenance activities.
5. Generators of yard waste, except those identified in subdivision
seven of this section, shall separate, tie, bundle, or place into bags
or receptacles, in accordance with rules promulgated by the commission-
er, any yard waste set out for collection by the department pursuant to
subdivision two of this section. The commissioner shall notify all resi-
dents in districts that receive yard waste collection by the department
of such pre-collection procedures, and undertake any other action neces-
sary to effectuate the purposes of this subdivision.
6. No person engaged in a business that generates yard waste shall
leave such yard waste for collection by the department, or disperse such
yard waste in or about the curb or street. Any person engaged in a busi-
ness that generates yard waste shall be required to collect and dispose
of such yard waste at a permitted composting facility; provided, howev-
er, that if the department, by written order of the commissioner, deter-
mines that there is insufficient capacity at permitted composting facil-
ities within the city, then such yard waste may be disposed of at any
appropriately permitted solid waste management facility.
7. Each permitted composting facility within the city, including those
operated by city agencies, shall annually report to the commissioner the
amount of yard waste and any other organic waste collected and disposed
of by weight at such composting facility. All such reports shall be
submitted prior to February first of each calendar year and shall
contain the amount collected and disposed of for the previous calendar
year. The department shall consolidate the information contained in all
reports prepared pursuant to this subdivision and include such informa-
tion as part of the department's annual zero waste report required
pursuant to subdivision b of section 16-316.5 of the code of the preced-
ing municipality.
8. No person residing in a district where the department provides
residential yard waste composting collection pursuant to subdivision two
of this section shall dispose of grass clippings as regular waste for
collection by the department during the period of time when the depart-
ment conducts such composting collection. The department shall conduct
outreach and education to inform residents within such districts of the
dates when it will conduct yard waste composting collection. No person
residing in a district where the department provides residential yard
waste composting collection shall be held liable for a violation of this
subdivision during the first year the department provides such residen-
tial yard waste composting collection.
§ 16-308.1 Curbside organics collection. 1. Organics collection
program. The department shall establish a mandatory citywide curbside
organics collection program for the diversion of organic waste in
accordance with this section. Such program shall be implemented by no
later than:
a. October second, two thousand twenty-three, for residential proper-
ties in no less than thirty sanitation districts, as determined by the
commissioner by rule.
A. 10030 1171
b. October seventh, two thousand twenty-four, for residential proper-
ties in all remaining sanitation districts.
2. Implementation plan. No later than July first, two thousand twen-
ty-three, the department shall develop, submit to the mayor and speaker
of the council, and post on the department's website a curbside organics
collection implementation plan. Such plan shall include information
related to, at minimum:
a. How the department will implement such program;
b. The education and outreach program required pursuant to subdivision
five of this section; and
c. How the department will distribute necessary materials, including
rodent-proof organics collection bins, at no cost to residential build-
ing owners, and a timeline for such distribution.
3. End use of collected organic waste. In the next solid waste manage-
ment plan prepared pursuant to section 27-0107 of the environmental
conservation law and presented to the council pursuant to section 16-140
of the code of the preceding municipality following the effective date
of this section, the department shall include a plan to maximize the
usable composting of organic waste collected pursuant to this section.
Such plan for the usable composting of organic waste shall describe the
amount of organic waste collected and sent to composting facilities to
be processed into usable compost pursuant to this section.
4. Reporting. The department shall report by weight the total amount
of organic waste diverted pursuant to this section during the previous
year, disaggregated by sanitation district. Such report shall be
included as part of the department's annual zero waste report required
pursuant to section 16-316.5 of the code of the preceding municipality.
5. Education and outreach. The department shall develop an outreach
and education program to educate residents, building owners, and staff
of residential buildings on the curbside organics collection program
established pursuant to this section. Materials used for such outreach
and education program shall be available in all designated citywide
languages, as defined in section 23-1101 of the code of the preceding
municipality, and any additional languages as determined by the depart-
ment in consultation with local community organizations. No later than
two months prior to the implementation of the curbside organics
collection program for residential properties in a sanitation district
pursuant to subdivision one of this section, the department shall
distribute such materials to residents, building owners, and community
based organizations in such district. Such materials shall also be made
available on the department's website. Such materials shall include:
a. A detailed explanation of organic waste and the benefits of curb-
side organics collection;
b. Information on how the curbside organics collection program will be
implemented and instructions for how to properly source separate organic
waste; and
c. Any other information as determined by the commissioner.
6. Rules. The commissioner shall adopt and implement rules as neces-
sary to effectuate this section. Such rules may include, but need not be
limited to, the designation of organic waste as a recyclable material
pursuant to subdivision two of section 16-305 of this chapter, proce-
dures requiring the placement of organic waste at the curbside, in
specialized containers or in another manner determined by the commis-
sioner pursuant to subdivision four of such section, and the implementa-
tion and enforcement of this section and such rules in buildings
A. 10030 1172
containing four or more dwelling units pursuant to subdivisions five,
six and seven of section 16-305 of this chapter.
7. Penalty. A residential building owner who violates this section
shall be liable for a civil penalty as set forth in section 16-324 of
this title, except that prior to April first, two thousand twenty-five,
a residential building owner who violates this section shall be issued a
written warning that a violation has been observed, provided that noth-
ing in this subdivision shall preclude the department from enforcing any
rules relating to yard waste separation promulgated pursuant to section
16-308 of this chapter.
§ 16-308.2 Organic waste drop off sites. 1. Definitions. As used in
this section, the following terms have the following meanings:
a. Community partner. The term "community partner" means a not-for-
profit organization, community garden or other similar organization that
operates or makes available to the public an organic waste drop off
site.
b. Community scale composting facility. The term "community scale
composting facility" means a physical location operated by a not-for-
profit organization that engages in composting, through a registration
or agreement with the department, but that is not of sufficient size so
as to be required to obtain a permit for the operation of such facility
from the New York state department of environmental conservation.
c. Organic waste drop off site. The term "organic waste drop off site"
means a physical location for the collection of organic waste from
members of the public.
2. Except as provided in subdivision three of this section, no later
than April first, two thousand twenty-four, the department, in consulta-
tion with community partners, shall ensure that no less than thirty
organic waste drop off sites are established and operational throughout
the city, provided that no less than three such sites are established in
each borough. Each such site shall have a minimum of twenty hours avail-
able per week for individuals to drop off organic waste, except that
organic waste drop off sites operated by community partners shall be
open for a minimum of five hours per week, and each such organic waste
drop off site shall be located in a geographic area that is easily
accessible, including for persons with disabilities, and in close prox-
imity to public transportation, provided, however, an organic waste drop
off site operated by a community partner may be operated on a seasonal
basis.
3. For the purposes of subdivision two of this section, an organic
waste drop off site may be a community scale composting facility or a
drop off site operated by the department, including co-location with a
recycling center, as required pursuant to section 16-310.3 of this chap-
ter.
4. No later than January first, two thousand twenty-six, the depart-
ment shall review the requirements of subdivision two of this section
and submit to the mayor and the speaker of the council a recommendation
as to whether such drop off sites should be continued.
5. Site information. The department shall post on its website informa-
tion about each organic waste drop off site established pursuant to this
section. Such information shall include each such site's address,
contact information, hours of operation and services provided. Where
applicable, such information shall also be clearly posted in a publicly
visible location at the entrance to each such site.
6. Education and outreach. The department, in consultation with any
agency or office designated by the mayor, shall develop an education and
A. 10030 1173
outreach program to inform residents about the organic waste drop off
sites and community scale composting facilities established pursuant to
this section. Such education and outreach shall include the information
set forth in subdivision five of this section. Any educational or
outreach materials developed pursuant to this section, as well as any
other educational materials on recycling that the commissioner deems
relevant, shall be available in all designated citywide languages, as
defined in section 23-1101 of the code of the preceding municipality,
and supplied to each organic waste drop off site. The department shall
also perform outreach to community partners and other not-for-profit
organizations to provide them with information on how the public can
engage in opportunities to work with the department to open and operate
organic waste drop off sites and community scale composting facilities.
7. Reporting. The department shall report annually on the operation of
organic waste drop off sites. Such report shall be included as part of
the department's annual zero waste report required pursuant to section
16-316.5 of the code of the preceding municipality. Such report shall
include, at a minimum, the following information, disaggregated by
organic waste drop off site where feasible:
a. The total amount of material collected at such site;
b. The number of individuals who used such site during the reporting
period;
c. The number of full-time and part-time staff members working at such
site, if any; and
d. Where the organic waste collected at such site was processed
following collection.
§ 16-309 Christmas trees. The commissioner shall establish and imple-
ment a curbside collection system for Christmas trees during a minimum
of two weeks in January of each year and provide for the composting or
recycling of the Christmas trees the department collects or receives for
disposal.
§ 16-310 Public space recycling. 1. The department shall expand its
public space recycling program by increasing the number of public space
recycling receptacles for the collection of recyclable materials includ-
ing, but not limited to, metal, glass, plastic and paper designated as
recyclable materials by the commissioner, to a cumulative total of at
least five hundred public space recycling receptacles, and to a cumula-
tive total of at least one thousand public space recycling receptacles,
at public locations in the city, which shall be in or near public parks,
transit hubs, or commercial locations with high-pedestrian traffic. As
part of such expansion, the department shall place public space recycl-
ing receptacles in all business improvement districts that provide
public litter basket maintenance. Whenever practicable, public space
recycling receptacles placed pursuant to this section shall be placed
adjacent to public litter baskets.
2. Notwithstanding the provisions of subdivision one of this section,
the department shall not be required to expand the public space recycl-
ing program beyond existing or newly-established collection routes that
can be efficiently serviced by the department. The commissioner shall
have the authority to remove any public space recycling receptacle
placed pursuant to this section, provided that the department replaces
any such public space recycling receptacle, within thirty days of
removal, with additional public space recycling receptacles at the same
or in a different location on a one-to-one basis.
3. No person responsible for removing or transporting recyclable mate-
rials placed in public space recycling receptacles shall commingle such
A. 10030 1174
recyclable materials with non-recyclable materials or otherwise improp-
erly dispose of such recyclable materials.
4. The department shall report the total number of public space recy-
cling receptacles added during the relevant reporting year, and the
locations in which they were placed. Such report shall be included as
part of the department's annual zero waste report required pursuant to
subdivision b of section 16-316.5 of the code of the preceding munici-
pality.
5. The department may enter into sponsorship or partnership agreements
with entities such as for-profit and not-for-profit corporations and
district management associations established in accordance with section
25-414 of the code of the preceding municipality to further the goals of
this chapter.
§ 16-310.1 Textile reuse and recycling program. 1. On or before Janu-
ary first, two thousand eleven, the department shall establish a city-
wide textile reuse and recycling program that shall, at a minimum,
provide for the recovery of textiles by placing department-approved
publicly accessible textile drop-off bins at appropriate locations on
city property or property maintained by the city and organizing public
textile reuse and recycling sites throughout the city that provide
convenient drop-off locations for all city residents. In addition, the
commissioner shall explore opportunities to work cooperatively with
private entities, including, but not limited to, not-for-profit corpo-
rations and religious institutions, to promote expanded siting of
publicly accessible textile drop-off bins on private property throughout
the city. The department shall consider using department personnel or
facilities in order to implement the provisions of this section.
2. No publicly accessible textile drop-off bin placed pursuant to this
section shall be placed on city property or property maintained by the
city, or on a public sidewalk or roadway, unless otherwise authorized by
the city. No publicly accessible textile drop-off bin shall be placed on
private property without the written permission of the property owner or
the property owner's authorized agent. The owner or other person respon-
sible for each such bin shall report at least every three months to the
department the amount of textiles collected in such bin by weight. Each
publicly accessible textile drop-off bin shall prominently display on
the front and on at least one other side of the bin, the name, address
and telephone number of the owner or other person responsible for the
bin. This information shall be printed in characters that are plainly
visible. In no event shall a post office box be considered an acceptable
address for purposes of this subdivision.
3. The department shall report by weight the amount of textiles
collected in publicly accessible textile drop-off bins located on city
property or property maintained by the city, through public textile
reuse and recycling sites pursuant to subdivision one of this section
and in publicly accessible textile drop-off bins maintained on private
property. Such report shall be included as part of the department's
annual zero waste report required pursuant to subdivision b of section
16-316.5 of the code of the preceding municipality.
§ 16-310.2 Paint stewardship program. 1. The commissioner shall estab-
lish a voluntary paint stewardship program under which manufacturers of
architectural paint, in cooperation with distributors of architectural
paint and retail establishments that sell, or offer for sale, architec-
tural paint in the city, may establish a collection or other reclamation
system to collect architectural paint from consumers for reuse, recycl-
ing or environmentally sound disposal.
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2. The commissioner shall provide assistance or guidance to partic-
ipating architectural paint manufacturers, distributors and retail
establishments in developing and implementing strategies to reduce the
quantity of architectural paint in the waste stream, promote the reuse
of architectural paint that would otherwise be discarded and disseminate
information regarding options to recycle architectural paint including,
but not limited to, posting information regarding the voluntary paint
stewardship program on the department's website.
§ 16-310.3 Community recycling. 1. Community recycling centers. No
later than December thirty-first, two thousand twenty-four, the depart-
ment shall ensure that at least two community recycling centers are
established and operational in each borough. Each such center shall be
available for drop offs at least twenty-four hours per week, including
weekends. Such centers shall be located in geographic areas that are
easily accessible, including for persons with disabilities, and shall be
in close proximity to public transportation and public housing develop-
ments, where practicable. Any organic waste drop off site provided for
by local law may be co-located within such a center.
2. Community recycling events. No later than September thirtieth, two
thousand twenty-three, and annually thereafter, the department shall
host no less than one community recycling event in each community
district. Each such event shall be located in a geographic area that is
easily accessible, including for persons with disabilities, and in close
proximity to public transportation and public housing developments,
where practicable. Such events may be co-located with other sanitation
services. Community recycling events required by this subdivision shall
be in addition to any recycling event operated by an entity or organiza-
tion other than the department, provided that any recycling event oper-
ated pursuant to a contract with the department shall be considered to
be hosted by the department for purposes of this section.
3. Materials collected. Each community recycling center and community
recycling event shall accept, to the extent practicable, inorganic mate-
rial that is not collected through regular curbside collection but that
can be recycled or reused. One community recycling center per borough
shall also accept hazardous material, as practicable and as defined by
the department, that should not be disposed of as curbside waste.
4. Community recycling center and event information. The department
shall make available on the department's website, and distribute to each
local community board, the following information about the community
recycling centers and community recycling events required by this
section:
a. Location, including street address and borough;
b. Contact information;
c. Hours of operation; and
d. Services provided.
5. Education and outreach. The department, in consultation with any
agency identified by the mayor, shall develop an outreach and education
program to inform residents about community recycling centers and commu-
nity recycling events, including their locations, contact information,
hours of operation, and the services they provide.
6. Reporting. The department shall report annually on the operation
community recycling centers and community recycling events required
pursuant to this section. Such report shall be included as part of the
department's annual waste diversion report required pursuant to section
16-316.5 of the code of the preceding municipality. Such report shall
include, but need not be limited to, the following information, disag-
A. 10030 1176
gregated by community recycling center and community recycling event,
where feasible:
a. The number of individuals utilizing such centers and events;
b. The material collected at each such center and event, disaggregated
by material type;
c. The number of full-time and part-time staff persons working at each
such center and event;
d. Where each type of material collected is sent; and
e. A description of the education programs offered to the public.
§ 16-311. Recycling outreach and education. 1. The department shall
provide instruction and materials for residential building owners, net
lessees or persons in charge of such buildings, and their employees and
residents, in order to improve compliance with the provisions of this
chapter.
2. The commissioner shall establish a recycling education program that
shall include recycling instructional workshops, training curricula and
other relevant materials for residential building owners, net lessees or
persons in charge of such buildings, and their employees and residents,
including an internet-based recycling tutorial. Such program shall also
provide instructional workshops, training curricula, and other relevant
material to employees of city agencies, including a leaf and yard waste
training program for employees of any such agencies that generate
significant leaf and yard waste. The commissioner may utilize a private
entity or not-for-profit corporation to assist with the establishment or
performance of such program.
§ 16-312 Processing recyclable materials. The commissioner shall
establish procedures and standards for processing recyclable materials
designated pursuant to section 16-305 of this chapter in city owned or
operated recycling centers, city owned or operated transfer stations or
any city owned or operated facility that renders recyclable materials
suitable for reuse or marketing and sale. The commissioner shall annu-
ally review such procedures and standards and make any changes necessary
to conform to the requirements of the marketplace.
§ 16-313 Marketing recyclable materials. The department shall estab-
lish procedures, standards and strategies to market the recyclable mate-
rials designated pursuant to section 16-305 of this chapter, including
but not limited to maintaining a list of prospective buyers, establish-
ing contact with prospective buyers, entering into contracts with
buyers, and reviewing and making any necessary changes in collecting or
processing the materials to improve their marketability.
§ 16-314 Recycling program revisions. The commissioner shall annually
review the recycling program and all rules promulgated thereunder, and
shall make the necessary revisions to improve the efficiency of collect-
ing, processing, marketing and selling the materials recycled pursuant
to this title. These revisions may include designating additional
recyclable materials. The commissioner shall not delete designated mate-
rials without designating additional materials so that the total quanti-
ty, by weight, of all designated recyclable materials collected, proc-
essed, marketed and sold does not decrease.
Where the commissioner determines that it is appropriate to delete a
designated material, the department shall provide notice of such
deletion to the mayor and the council, including the reason for such
deletion, and shall provide any relevant data supporting such decision.
§ 16-315 Notice, education and research programs. 1. In addition to
the notice requirements of this code, within thirty days of the effec-
tive date of any rules promulgated pursuant to this title, and as
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frequently thereafter as the commissioner deems necessary, the depart-
ment shall notify all persons occupying residential, commercial and
industrial premises affected by the rules, of the requirements of the
rules, by posting notices containing recycling information in public
places where such notices are customarily placed and, in the commission-
er's discretion, employing any other means of notification deemed neces-
sary and appropriate.
2. The commissioner shall compile relevant recycling, reuse and
composting information, including material available on the department's
website, to create and make available a guide to the city's residential
recycling program. Such guide shall, at a minimum, summarize and explain
the laws and rules governing curbside recycling, list the collection
locations and collection dates for non-curbside collected recyclable
materials such as household hazardous waste and textiles, and provide
detailed information and instructions on how to recycle any materials
not collected by the department for which non-city or non-department
recycling programs exist. Such guide shall be made available to resi-
dential building owners, or the net lessees or persons in charge of such
buildings, community boards, not-for-profit organizations, public
schools, and other relevant agencies and entities, and shall also be
made available on the department website. The commissioner shall update
the recycling guide biennially, or as necessary, based on changes to
recycling laws, rules or other relevant information to be included ther-
ein.
3. The department shall develop and implement an educational program,
in conjunction with the department of education, private schools, labor
organizations, businesses, neighborhood organizations, and other inter-
ested and affected parties, and using flyers, print and electronic
advertising, public events, promotional activities, public service
announcements, and such other techniques as the commissioner determines
to be useful, to assure the greatest possible level of compliance with
the provisions of this title. The educational program shall encourage
waste reduction, the reuse of materials, the purchase of recyclable
products, and participation in city and private recycling activities.
4. The department shall perform such research and development activ-
ities, in cooperation with other city agencies, and public and private
institutions, as the commissioner determines to be helpful in implement-
ing the city's recycling program. Such research shall include, but not
be limited to, investigation into the use of cooperative marketing
programs, material recovery facilities, recycling as an economic devel-
opment tool, export promotion, tax credits and exemptions for market
promotion.
Chapter 5
RECYCLING ADVISORY BOARDS
§ 16-317 Citizens' solid waste advisory boards; membership. Within six
months of the effective date of this title, the city shall establish a
citizens' solid waste advisory board (the "citizens' board"), consisting
of no fewer than twenty members who for the first term shall be
comprised of the members of the city's citizens' advisory committee on
resource recovery and other persons appointed jointly by the mayor and
the council members. For each subsequent term, all members shall be
appointed jointly by the mayor and the council members. The membership
of the citizens' board shall represent community boards, recycling
industries, carting industries, environmental organizations, government
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agencies, labor organizations, business organizations, property owners,
tenant organizations and members of the general public. Members shall
serve for a term of one year without compensation and shall designate
one member to serve as chairperson and one as vice-chairperson.
§ 16-318 Functions of the citizens' board. 1. The department shall
submit to the mayor the portion of the biennial report addressing the
city's recycling program that is prepared pursuant to the city's two
thousand six solid waste management plan, simultaneous with the
submission of such report to the mayor and the council. The mayor shall
distribute copies of the plans to each member of the citizens' board.
Within ninety days thereafter, the citizens' board shall review the
plans, conduct a public hearing on the plans and make written recommen-
dations to the mayor, the department and the council with respect to the
recycling program. The citizens' board shall also annually advise the
mayor and the department with respect to the development, promotion and
operation of the recycling program and pursuant to this function shall
formulate and recommend:
(a) annual recycling goals equal to or greater than those set forth in
section 16-305 of this title and the methods proposed to achieve such
goals;
(b) means to encourage community participation in the recycling
program; and
(c) means to promote the recycling program and educate the public with
regard to the program.
2. The citizens' board shall assume all the responsibilities and func-
tions of the city's citizens' advisory committee on resource recovery.
§ 16-319 Citywide recycling advisory board; membership. There shall be
a citywide recycling advisory board (the "citywide board") consisting of
at least one representative from each citizen's board, five members
appointed by the council, and five members appointed by the mayor. The
membership of the citywide board shall represent community boards, recy-
cling industries, carting industries, environmental organizations,
government agencies, labor organizations, business organizations, real
property owners, tenant organizations and members of the general public.
Members shall serve for a term of one year without compensation and
shall designate one member to serve as chairperson and one as vice-
chairperson.
§ 16-320 Functions of the citywide board. The citywide board shall
meet at least four times a year to discuss citywide recycling issues,
including but not limited to budgetary issues. The citywide board shall
annually review the department's recycling program and make recommenda-
tions to the mayor and the council concerning improvements to and chang-
es in the program.
§ 16-321 Disclosure requirements. 1. Whenever a person, other than a
public servant, appointed to any advisory board created pursuant to this
chapter, engages in any business dealings with the department, or
engages in business dealings with any other agency that relate to proc-
essing or disposal of solid waste or of waste described in paragraph (c)
of subdivision fifteen of section 16-303 of this title or to recycling,
or has an interest in a firm that is engaged in such business dealings
with the department or with such other agency, such person shall, prior
to appointment, disclose the nature of such business dealings to the
commissioner and to the body or officer appointing such person, and,
after appointment, disclose the nature of such business dealings to the
commissioner and to all other members of such board; provided that such
person need not disclose the amount of such business dealings.
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2. When used in this section:
(a) "Advisory committee" means a committee, council, board or similar
entity that is constituted to provide advice or recommendations to the
city and which has no authority to take a final action on behalf of the
city, to take any action that would have the effect of conditioning,
limiting or requiring any final action by any other agency, or to take
any action that is authorized by law.
(b) "Agency" means a city, county, borough or other office, position,
administration, department, division, bureau, board, commission, author-
ity, corporation, advisory committee or other agency of government, the
expenses of which are paid in whole or in part from the city treasury,
and shall include but not be limited to, the council, the offices of
each elected official, the department of education, community school
boards, community boards, the financial services corporation, the health
and hospitals corporation and the public development corporation, but
shall not include any court or any corporation or institution maintain-
ing or operating a public library, museum, botanical garden, arboretum,
tomb, memorial building, aquarium, zoological garden or similar facili-
ty.
(c) "Blind trust" means a trust in which a candidate for any advisory
board created pursuant to this chapter or a member of such board, or the
spouse or unemancipated child of such candidate or member, has a benefi-
cial interest, the holdings and sources of income of which such candi-
date or member and such spouse and unemancipated child have no know-
ledge, and the trustee of which shall have independent authority and
discretion.
(d) "Business dealings" means any transaction involving the sale,
purchase, rental, disposition or exchange of any goods, services or
property, and any performance of or litigation with respect to any of
the foregoing, but shall not include any transaction involving the resi-
dence of any candidate for any advisory board created pursuant to this
chapter or of any member of such board, or any ministerial matter.
(e) "City" means the city of Staten Island and includes an agency of
the city.
(f) "Elected official" means a person holding office as mayor, comp-
troller, public advocate, borough president or member of the council.
(g) "Firm" means a sole proprietorship, joint venture, partnership,
corporation or any other form of enterprise, but shall not include a
public benefit corporation or local development corporation.
(h) "Interest" means an ownership interest in a firm or a position
with a firm.
(i) "Ministerial matter" means an administrative act that is carried
out in a prescribed manner and which does not involve substantial
personal discretion.
(j) "Ownership interest" means an interest in a firm that is held by a
candidate for any advisory board created pursuant to this chapter, or by
a member of such board, or by the spouse, domestic partner, or unemanci-
pated child of such candidate or member, which exceeds five percent of
the firm or an investment of twenty-five thousand dollars in cash or
other form of commitment, whichever is less, or five percent or twenty-
five thousand dollars of the firm's indebtedness, whichever is less, and
any lesser interest in a firm when such candidate or member, or such
spouse, domestic partner, or unemancipated child, exercises managerial
control or responsibility regarding any such firm, but shall not include
interests held in any pension plan, deferred compensation plan or mutual
fund, the investments of which are not controlled by such candidate or
A. 10030 1180
member, or by such spouse, domestic partner, or unemancipated child, or
in any blind trust that holds or acquires an ownership interest.
(k) "Position" means a position in a firm, such as an officer, direc-
tor, trustee, employee or any management position, or as an attorney,
agent, broker or consultant to the firm, which does not constitute an
ownership interest in the firm.
(l) "Public servant" means all officials, officers and employees of
the city, including members of community boards and members of advisory
committees, except unpaid members of advisory committees shall not be
public servants.
(m) "Spouse" means a husband or wife of a candidate for any advisory
board created pursuant to this chapter or of a member of such board who
is not legally separated from such candidate or member.
(n) "Unemancipated child" means any son, daughter, step-son or step-
daughter who is under the age of eighteen, unmarried and living in the
household of a candidate for any advisory board created pursuant to this
chapter or of the member of such board.
Chapter 7
REGULATIONS SUBMITTED TO COUNCIL AND ENFORCEMENT
§ 16-323 Rules submitted to council. Rules adopted by the commission-
er pursuant to this chapter shall become effective only after filing and
publication as prescribed by chapter forty-five of the charter of the
preceding municipality. In addition, notwithstanding the provisions of
chapter forty-five of such charter, prior to adoption by the commission-
er of a final rule pursuant to subdivision e of section one thousand
forty-three of such charter, and after consideration of relevant
comments presented pursuant to subdivision d of such section, the
commissioner shall submit to the council the text of the final rule
proposed to be published in the city record. The council shall have
thirty days from the date of such submission to comment upon such text.
The final rule may include revisions in response to comments from the
council and shall not be published in the city record before the thir-
ty-first day after such submission, unless the speaker of the council
authorizes earlier publication.
§ 16-324 Enforcement. 1. Subject to the provisions of subdivision two
of this section, any person who violates this chapter, except section
16-306.1 of this title, subdivision seven of section 16-308 of this
title, section 16-310.1 of this title or section 16-329 of the code of
the preceding municipality, or any rule promulgated pursuant thereto,
shall be liable for a civil penalty recoverable in a civil action
brought in the name of the commissioner or in a proceeding returnable
before the environmental control board, as follows:
a. For residential buildings containing fewer than nine dwelling
units, the civil penalty shall be in an amount of twenty-five dollars
for the first violation, fifty dollars for the second violation commit-
ted on a different day within a period of twelve months, and one hundred
dollars for the third and each subsequent violation committed on a
different day within a period of twelve months, provided that the court
before which such civil action is brought or such board may waive the
penalty for the first violation upon a showing of good cause.
b. For residential buildings containing nine or more dwelling units
and commercial, manufacturing or industrial buildings, the civil penalty
shall be in an amount of one hundred dollars for the first violation,
two hundred dollars for the second violation committed on a different
A. 10030 1181
day within a period of twelve months, and four hundred dollars for the
third and each subsequent violation committed on a different day within
a period of twelve months, provided that the court before which such
civil action is brought or such board may waive the penalty for the
first violation upon a showing of good cause. The owner, net lessee or
person in charge of any residential building of nine or more dwelling
units or a commercial, manufacturing or industrial building with respect
to which four or more violations were committed on different days within
a period of six months shall be classified as a persistent violator.
c. For persistent violators only, each container or bag containing
solid waste that has not been source separated or placed out for
collection in accordance with the rules promulgated by the commissioner
pursuant to this chapter shall constitute a separate violation, provided
that no more than twenty separate violations are issued on a per bag or
per container basis during any twenty-four hour period. Before issuing
any such notices of violation to a persistent violator on a per bag or
per container basis, the commissioner shall give such violator a reason-
able opportunity to correct the condition constituting the violation.
d. There shall be a rebuttable presumption that the number of dwelling
units designated on a notice of violation issued pursuant to this
section reflects the number of dwelling units in the residential build-
ing for which the notice of violation was issued. Where such presumption
is rebutted, the number of dwelling units on such notice of violation
shall be deemed modified accordingly, and in no event shall such notice
of violation be dismissed solely on the ground that the number of dwell-
ing units on the original notice of violation was incorrectly stated.
e. The commissioner or the commissioner's designee shall establish a
recycling training program for owners or employees of residential build-
ings of nine or more dwelling units for which at least three notices of
violation for failing to properly source separate designated recyclable
material have been issued within a twelve-month period and which the
commissioner determines to be in need of recycling training. Such
training program shall require the building owner, or an employee who is
primarily responsible for waste disposal or janitorial services for any
such building, to attend a training program established by the commis-
sioner or the commissioner's designee designed to improve recycling
practices at such building and a fee may be imposed on any owner or
employee who participates in such training program. Such training
program may be held in any location designated by the commissioner or
the commissioner's designee, including, in order to facilitate tenant
participation, at such building.
2. Any person who violates subdivision seven of section 16-308 of this
title or any rules promulgated pursuant thereto shall be liable for a
civil penalty in the amount of two hundred fifty dollars for the first
violation, five hundred dollars for the second violation committed with-
in a twelve-month period, and one thousand dollars for the third and
each subsequent violation committed within a twelve-month period.
3. Any owner or other person responsible for a publicly accessible
textile drop-off bin who violates subdivision two of section 16-310.1 of
this title shall be liable as follows:
a. In the event that a publicly accessible textile drop-off bin is
impermissibly placed on city property, or property maintained by the
city, or on any public sidewalk or roadway, the owner of the publicly
accessible textile drop-off bin, if the address of such owner is ascer-
tainable, shall be notified by the department by certified mail, return
receipt requested, that such publicly accessible textile drop-off bin
A. 10030 1182
must be removed within thirty days from the mailing of such notice. A
copy of such notice, regardless of whether the address of such owner or
other responsible person is ascertainable, shall also be affixed to the
publicly accessible textile drop-off bin. This notice shall state that
if the address of the owner or other responsible person is not ascer-
tainable and notice is not mailed by the department, such publicly
accessible textile drop-off bin shall be removed within thirty days from
the affixing of such notice. This notice shall also state that the fail-
ure to remove the publicly accessible textile drop-off bin within the
designated time period will result in the removal and disposal of the
publicly accessible textile drop-off bin by the department. This notice
shall also state that if the owner or other responsible person objects
to removal on the grounds that the publicly accessible textile drop-off
bin is not on city property, or property maintained by the city, or on
any public sidewalk or roadway, such owner or other responsible person
may send written objection to the department at the address indicated on
the notice within twenty days from the mailing of such notice or, if the
address of such owner or other responsible person is not ascertainable
and notice is not mailed by the department, within twenty days from the
affixing of such notice, with proof that the publicly accessible textile
drop-off bin is not on city property, or property maintained by the
city, or on any public sidewalk or roadway. Proof that the publicly
accessible textile drop-off bin is not on city property, or property
maintained by the city, or on any public sidewalk or roadway shall
include, but not be limited to, a survey of the property prepared by a
licensed surveyor that is certified by the record owner of such proper-
ty.
b. Any owner or other person responsible for an impermissibly placed
publicly accessible textile drop-off bin that fails to respond within
twenty days of receipt of such notice under paragraph a of this subdivi-
sion or otherwise fails to establish that the publicly accessible
textile drop-off bin is not on city property, or property maintained by
the city, or on any public sidewalk or roadway pursuant to paragraph a
of this subdivision, shall be liable for a civil penalty in the amount
of one hundred dollars, recoverable in a proceeding returnable before
the environmental control board.
4. Any notice of violation or notice of hearing for a violation issued
to the owner, net lessee or person in charge of a premises or to a food
service establishment, mobile food commissary, store, or manufacturer,
as those terms are defined in section 16-329 of the code of the preced-
ing municipality, at which or by whom a violation of this chapter or any
rule promulgated pursuant thereto is alleged to have occurred or to have
been committed shall be served by delivering a copy of the notice there-
of at the address maintained in the records of the department of housing
preservation and development, the department of finance, or the depart-
ment of health and mental hygiene. The notice of violation or notice of
hearing may be served by regular mail or in accordance with section one
thousand forty-nine-a of the charter of the preceding municipality or,
if such notice is served by an agency other than the department, in
accordance with the rules of such agency.
5. a. Any covered establishment that violates section 16-306.1 of this
title or rules of the department, the department of health and mental
hygiene, or the department of consumer and worker protection promulgated
pursuant thereto shall be liable for a civil penalty recoverable in a
civil action brought in the name of the commissioner or the commissioner
of health and mental hygiene, or the commissioner of consumer and worker
A. 10030 1183
protection, or in a proceeding returnable before any tribunal estab-
lished within the office of administrative trials and hearings in the
amount of two hundred fifty dollars for the first violation, five
hundred dollars for the second violation committed on a different day
within a period of twelve months, and one thousand dollars for the third
and each subsequent violation committed on different days within a peri-
od of twelve months, except that the department, the department of
health and mental hygiene, and the department of consumer and worker
protection shall not issue a notice of violation, but shall issue a
warning, for any violation by a designated covered establishment that
occurs during the first twelve months after the commissioner designates
such covered establishment pursuant to subdivision two of section
16-306.1 of this title.
b. Any transfer station that violates section 16-306.1 of this title
or rules of the department promulgated pursuant thereto shall be liable
for a civil penalty recoverable in a civil action brought in the name of
the commissioner or in a proceeding returnable before the environmental
control board in the amount of two hundred fifty dollars for the first
violation, five hundred dollars for the second violation committed on a
different day within a period of twelve months, and one thousand dollars
for the third and each subsequent violation committed on different days
within a period of twelve months, except that the department shall not
issue a notice of violation, but shall issue a warning, for any
violation by a designated covered establishment that occurs during the
first twelve months after the commissioner designates such covered
establishment pursuant to subdivision two of section 16-306.1 of this
title.
c. Any private carter that violates section 16-306.1 of this title or
rules of the business integrity commission promulgated pursuant thereto
shall be liable for a civil penalty recoverable in a civil action
brought in the name of the chair of the business integrity commission,
or in a proceeding brought by the chair of the business integrity
commission held in accordance with title sixteen-A of the code of the
preceding municipality, except that the chair of the business integrity
commission shall not issue a notice of violation, but shall issue a
warning, for any violation by a designated covered establishment that
occurs during the first twelve months after the commissioner designates
such covered establishment pursuant to subdivision two of section
16-306.1 of this title.
6. Any person who violates section 16-329 of the code of the preceding
municipality or any rule promulgated pursuant thereto shall be liable
for a civil penalty recoverable in a civil action brought in the name of
the commissioner, the commissioner of health and mental hygiene or the
commissioner of consumer and worker protection, or in a proceeding
before the environmental control board, or any tribunal established
within the office of administrative trials and hearings in the amount of
one hundred fifty dollars for the first violation, two hundred fifty
dollars for the second violation committed on a different day within a
period of twelve months, and five hundred dollars for the third and each
subsequent violation committed on different days within a period of
twelve months.
Title 17 - Health
§ 17-101 Definitions. As used in this title:
1. "Board" shall mean the board of health.
A. 10030 1184
2. "Commissioner" means the commissioner of the department of health.
3. "Department" means the department of health.
4. "Health code" means the health code of the city of Staten Island.
§ 17-102 Department; commissioner. 1. There shall be a department of
health, the head of which shall be the commissioner of health.
2. The commissioner, with concurrence of the board of health, may
adopt a seal for use in the authentication of the orders, proceedings
and commissions of the department.
3. The commissioner shall be appointed by the mayor and shall be a
doctor of medicine and a holder of a degree of master of public health
or a degree of master of business administration with concentration in
the health field or a degree of master of public administration with
concentration in the health field or the equivalent of any one of the
specified foregoing degrees received from a college or university and
have had at least five years' experience either in public health or
administration or in college or university public health teaching or
both.
§ 17-103 Board of health. 1. There shall be in the department a board
of health, the chair of which shall be the commissioner. In addition to
the chairperson the board shall also consist of four members, two of
whom shall be doctors of medicine who shall each have had not less than
ten years' experience in any or all of the following: clinical medicine,
public health administration or college or university public health
teaching. The other two members need not be physicians.
2. The four members other than the chairperson shall serve without
compensation and shall be appointed by the mayor, each for a term of
eight years. In the case of a vacancy, the mayor shall appoint a member
to serve for the unexpired term.
3. The commissioner shall designate employees of the department as
necessary to service the board including an employee designated by the
commissioner to serve as the secretary of the board.
4. A member of the board of health, other than the chair, may be
removed by the mayor on proof of official misconduct or of negligence in
official duties or of conduct in any manner connected with his or her
official duties, or of mental or physical inability to perform his or
her duties. Prior to removal of a board member for any of the reasons
stated above, the member shall be given a copy of the charges against
him or her and shall be entitled to a hearing before the mayor and to
assistance of counsel at such hearing.
§ 17-104 Powers and duties of commissioner. 1. The commissioner
shall:
(a) have all the powers and duties vested in him or her or in the
department by this title, except for those vested by law in the board of
health or the chief medical examiner.
(b) prepare and submit to appropriate governmental authorities short
term, intermediate and long range plans and programs designed to meet
the needs of the city including the needs for construction and operation
of medical and health care facilities, except that the commissioner may
not construct or operate a new medical facility until the health systems
agency having jurisdiction over that institution has received a copy of
the application filed with the commissioner, in the case of private
institutions, or all information in form and detail as the health
systems agency shall require, in the case of institutions of the city of
Staten Island, and it shall have given the commissioner a written deci-
sion of approval or disapproval; and
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(c) not be considered bound by the decision given as described above,
but he or she shall not approve any construction, addition or modifica-
tion contrary to the health systems agency without first holding a
public hearing.
2. In reaching decisions pursuant to this section, the commissioner
and the health systems agency shall consider:
(a) the public need for the existence of the new institution or the
construction, addition or modification of an existing institution at the
time and place and under the circumstances proposed;
(b) the character, competence and standing in the community of the
owners and licensees, in the case of private institutions;
(c) the financial resources of the institution and its sources of
future revenue;
(d) the fitness and adequacy of the premises, and equipment, person-
nel and standards of care to be used in the operation of the proposed
institution; and
(e) such other matters as each of them considers pertinent.
3. The commissioner may compel the attendance of witnesses in any
matter or proceeding before the commissioner.
4. The commissioner may assess any penalty prescribed for a violation
of or a failure to comply with any provision of this title or any other
lawful notice, order or regulation pursuant thereto, which penalty may
be assessed, although not to exceed one thousand dollars, after a hear-
ing or an opportunity to be heard.
§ 17-105 Functions, powers and duties of the department. Except as
otherwise provided by law, the department shall have jurisdiction to
regulate all matters affecting health in the city and to perform all
those functions and operations performed by the city that relate to the
health of the people of the city including, but not limited to, the
following:
1. enforce all provisions of law applicable in the area under the
jurisdiction of the department for the preservation of human life; the
care, promotion and protection of health and to the necessary health
supervision of the purity and wholesomeness of the water supply. The
department shall also maintain and operate office health centers, health
stations or other facilities which may be required for the preservation
of health and the care of the sick;
2. exercise its functions, powers and duties in the area extending
over the city, the waters adjacent thereto, within the jurisdiction of
the city and within the quarantine limits established by law;
3. receive and expend funds made available for public health
purposes;
4. supervise and control the registration of births, fetal deaths and
deaths;
5. engage in and promote health research for the purpose of improving
the quality of medical and health care. In conducting such research the
department may conduct medical audits, receive reports on forms
prescribed by the department and any information received by the depart-
ment with regard to such research shall be kept strictly confidential,
used solely for medical or scientific research purposes or for the
improvement of the quality of medical care;
6. supervise the reporting and control of communicable and chronic
diseases and conditions hazardous to life and health; and exercise
control over and supervise the abatement of nuisances affecting the
public health;
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7. produce, standardize and distribute certain diagnostic, preventa-
tive and therapeutic products and conduct laboratory examinations for
the diagnosis, prevention and control of disease;
8. promote or provide education in the prevention and control of
disease;
9. promote or provide diagnostic and therapeutic services for mater-
nity and child health, family planning, communicable disease, medical
rehabilitation, narcotics addiction and other diseases and conditions
affecting public health;
10. promote and provide medical and health services for school chil-
dren and the ambulant sick and needy persons of the city;
11. promote and provide medical and health services for the incarcer-
ated individuals of prisons maintained and operated by the city;
12. maintain and operate public health centers and clinics as shall
be established in the department;
13. prior to the sale, closing, abandonment or transfer of a city
hospital, hold a public hearing regarding such proposal; and publish
notice of such hearing in such daily newspaper published in the city as
selected by the commissioner, such publication to take place not less
than ten days nor more than thirty days prior to the date fixed for the
hearing;
14. analyze and monitor hospitals, clinics, nursing homes and homes
for the aged, and analyze, evaluate, supervise and regulate clinical
laboratories, blood banks and related facilities providing medical
services;
15. supervise and regulate the public health aspects of water supply,
sewage disposal and water pollution;
16. supervise and regulate the public health aspects of the
production, processing and distribution of milk, cream and milk
products;
17. supervise and regulate the public health aspects of the food and
drug supply of the city and other businesses or activities affecting
public health in the city;
18. supervise and regulate the public health aspects of ionizing
radiation, handling and disposal of radioactive wastes and the activ-
ities within the city affecting radioactive materials, excluding special
nuclear materials in quantities sufficient to form a critical mass; and
19. supervise and regulate the removal, transportation and disposal of
human remains.
§ 17-106 Chief medical examiner. 1. There shall be in the department
an independent office of chief medical examiner, the head of which shall
be the chief medical examiner.
2. The chief medical examiner shall be appointed by the mayor from the
classified civil service and shall be a doctor of medicine and a skilled
pathologist and microscopist. The mayor may remove the chief medical
examiner upon filing in the office of the personnel director and serving
upon the examiner his or her reasons therefor and allowing the officer
an opportunity of making a public explanation.
3. The commissioner, with respect to the office of chief medical exam-
iner, shall exercise certain powers and duties pursuant to this section,
but he or she shall not interfere with performance by the chief medical
examiner or his or her office.
4. The chief medical examiner may appoint and remove such deputy chief
medical examiners, assistant medical examiners, junior medical examin-
ers, medical investigators, scientific experts and other officers or
employees as may be provided for in the budget.
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All assistant, associate, deputy and junior medical examiners shall
possess the same basic qualifications as the chief medical examiner. The
medical investigators shall be physicians duly licensed to practice
medicine in the state of New York.
5. The office of chief medical examiner shall be kept open every day
in the year, including Sundays and all legal holidays, and a clerk shall
be in attendance at all times during the day and night.
6. The chief and all deputy chief, associate, assistant and junior
medical examiners and all investigators may administer oaths, take affi-
davits, proofs and examinations.
7. The chief medical examiner shall have such powers and duties as may
be provided by law with respect to bodies of persons dying from criminal
violence, casualty, suicide, suddenly when in apparent good health, when
unattended by a physician, in a correctional facility or in any suspi-
cious or unusual manner or where an application is made for a permit for
cremation of the body.
8. The chief medical examiner shall keep full and complete records. He
or she shall promptly deliver, to the district attorney, copies of all
records relating to every death in which, in the opinion of the chief
medical examiner, there is any indication of criminality. Such records
shall not be open to public inspection.
§ 17-107 Health code. 1. The health code which is in force in the
preceding municipality on the date and time which this title takes
effect and all existing provisions of the health code, including penal-
ties affixed for violations, shall continue to be binding and in full
force, except as amended from time to time.
2. The board of health may add to, alter, amend or replace any part of
the health code, and may provide for the enforcement of the health code
or any orders made by the commissioner. The board of health shall
prescribe in the health code all matters and subjects to which the power
and authority of the department extends.
3. Any violation of the health code shall be treated and punished as a
misdemeanor.
§ 17-108 Temporary hospitals during epidemic. The board of health,
during prevalence of an epidemic or in the presence of great and immi-
nent peril to the public health, may take possession of any buildings in
the city for temporary hospitals and shall pay a just compensation for
any private property so taken. Such temporary hospitals shall be under
the control of the commissioner.
§ 17-109 Permits. The board of health may grant, suspend or revoke
permits for businesses and other matters in respect to any subject dealt
with in the health code or regulated by the department and the board may
prescribe reasonable fees for the issuance of said permits.
§ 17-110 Declaration of imminent peril. In the presence of great and
imminent peril to public health, the board of health shall take such
measures and order the department of health to do such acts beyond those
duly provided for, in the interests of preservation of the public
health. No expenditure shall be incurred in the exercise of such
extraordinary power, unless provision is made therefor in the budget or
unless such expenditures are financed pursuant to section 107.00 or
section 29.00 of the local finance law. Such peril shall exist when and
for such period of time as the board of health and the mayor declare.
§ 17-111 Right of entry. The commissioner and his or her officers may,
pursuant to a search warrant when required by law, enter, examine and
inspect all vessels, premises, grounds, structures, buildings and under-
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ground passages for compliance with the provisions of law enforced by
the department.
§ 17-112 Acceptance of private funds. No grants, gifts, devises,
legacies or bequests made to the city shall be accepted except with the
approval of the commissioner.
Title 18 - Parks
§ 18-101 Definitions. As used in this title:
1. "Commissioner" shall mean the commissioner of the department of
parks, recreation and cultural affairs.
2. "Department" shall mean the department of parks, recreation and
cultural affairs.
§ 18-102 Commissioner. The head of the department of parks, recre-
ation and cultural affairs shall be the commissioner.
§ 18-103 Powers and duties of commissioner. Except with respect to the
functions of the board of education, the commissioner shall have the
power and it shall be his or her duty:
1. With respect to parks:
(a) to manage and care for all parks, squares and public places, the
sidewalks immediately adjoining the same and all playgrounds, playground
fixtures and other recreation properties, except those within the juris-
diction of the board of education;
(b) to prepare for the establishment and improvement of a park system
for the city with regard to proper connections with the systems of
federal, state and county parks and recreation areas in the city and
counties adjacent to the city; and
(c) to maintain the beauty and utility of all parks, squares, public
places, playgrounds and other recreational properties.
2. With respect to recreation:
(a) to plan, acquire, construct, improve and merge facilities for the
recreation of the public;
(b) to plan, develop, conduct and supervise recreation programs for
the public;
(c) to review and coordinate recreation activities and programs and
facilities conducted by agencies of the city and the budget estimates
submitted by such other agencies for such activities and make such
recommendations to the mayor; and
(d) to undertake, subject to the approval of the mayor, and to enter
into arrangements with other agencies of the city, state or federal
government and to recommend to the mayor such arrangements with private,
voluntary or commercial agencies, subject to the law, for the perform-
ance of any recreation functions conferred upon the department.
3. With respect to cultural affairs:
(a) to plan, acquire, design, construct, improve and manage facilities
for the conduct of cultural activities by the city and, to the extent
possible, to use the resources of other agencies to perform design and
planning functions subject to the approval of such agencies;
(b) to plan, develop, conduct and supervise such cultural activities;
and
(c) to foster coordination among city, state and federal agencies,
other organizations and institutions with respect to cultural activities
in the city.
§ 18-201 Art commission. There shall be an art commission. All members
of the commission shall serve without compensation. The mayor shall
appoint and fill vacancies. The chairperson shall be the commissioner of
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parks, recreation and youth services. The commissioner shall accede to
the rights, powers and duties within the city of Staten Island of the
preceding arts commission of the city of New York.
Title 19 - Transportation
§ 19-102 Commissioner. There shall be a department of transportation
the head of which shall be the commissioner of transportation.
§ 19-103 Powers and duties of commissioner. The commissioner shall
have control over and be responsible for all the functions and oper-
ations of the city relating to transportation including, without limita-
tion, parking and traffic operations, highway operations, ferries and
related facilities and mass transportation facilities.
§ 19-104 Parking and traffic operations. 1. The commissioner shall
make rules and regulations for the conduct of vehicular and pedestrian
traffic in the streets, squares, avenues, highways and parkways of the
city. Violation of such rules shall be a traffic infraction triable by a
judge in criminal court and also may be adjudicated pursuant to this
title or pursuant to articles two-A and two-B of the vehicle and traffic
law.
2. In an emergency, the police commissioner may suspend for a period
of forty-eight hours the provision of any rule or procedure and shall
immediately notify the commissioner of such suspension.
3. In order to expedite the movement of traffic or to safeguard pedes-
trians or property, a police officer may order a person to disregard any
traffic signal or any regulation.
4. The commissioner shall establish, determine, control, install and
maintain the type, design, size and location of any and all signs,
signals and other devices indicating street names and other public plac-
es, and for guiding, directing or otherwise regulating vehicular and
pedestrian traffic.
5. The commissioner shall make recommendations to the mayor as to the
design and location of lighting devices, poles and fixtures, including
intensity of illumination of streets and highways.
6. The commissioner shall prepare and submit to the mayor a proposed,
comprehensive city traffic plan and the commissioner shall collect and
compile traffic data, prepare engineering studies and surveys in regard
to vehicular and pedestrian traffic and submit detailed reports to the
mayor regarding such data. The commissioner shall also have authority
to: (a) submit to the mayor from time to time recommendations and
proposals for consideration by the mayor and other city agencies in
regard to methods of ameliorating adverse traffic conditions which
cannot be remedied by traffic regulations; (b) amend existing regu-
lations and rules of any city agency which may affect traffic conditions
in the city; (c) propose legislation which may be necessary to imple-
ment such proposals; and (d) recommend improvements of existing
streets, locations of new streets, highways, parking garages, public
parking areas, offstreet loading facilities and other related matters.
7. The commissioner shall coordinate efforts of and consider reports
of public and private agencies and civic groups with regard to their
suggestions on traffic control in the city. The commissioner shall
prepare analyses of traffic accidents with a view to determining their
causes and means for prevention and shall carry on educational activ-
ities for the purpose of promoting traffic safety in the city.
8. The commissioner shall establish parking meter zones for on-street
and off-street parking; determine type, size and location of parking
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meters; and fix the fees for parking in public parking areas, except
that parking meter zones for both on-street and off-street parking shall
not apply to vehicles operated by disabled persons displaying special
vehicle identification cards issued by the commissioner.
9. The commissioner shall collect fees, fines and penalties for
violation of parking rules and shall keep all monies in a special fund
to be known as the "traffic improvement fund". The revenues in this
special fund shall be used, upon authorization by the council for
payment of all costs of purchase, rental, engineering, installation,
operation, maintenance and repair of parking meters, the collection of
coins, the enforcement of rules pertaining to parking, the collection of
fines and penalties for rules violations or the payment of interest on,
amortization of, or payment of any indebtedness contracted by the city
in connection with the installation and operation of parking meters. Any
revenues remaining after such payments are made shall be used for capi-
tal and other expenditures to ameliorate traffic conditions of the city.
10. The commissioner, in conjunction with the commissioner of finance,
may enter into agreements with not more than two financing agencies to
provide for the acceptance by the city of credit cards as an alternate
means of payment of fines or fees incurred due to violation of any law,
rule or regulation with regard to parking of a vehicle.
11. The commissioner shall have the power, concurrently with the
police department, to enforce laws, rules and regulations with regard to
all movement and conduct of vehicular and pedestrian traffic. The
commissioner may employ, hire and retain officers or employees for the
purpose of enforcing laws, rules and regulations with regard to regulat-
ing and controlling vehicular parking and movement of pedestrian and
vehicular traffic. Such officers or agents are authorized to issue and
serve tickets, summonses and complaints for traffic infractions.
12. The commissioner shall issue, upon application, a special vehicle
identification permit to a Staten Island resident certified by the
department of health as suffering from a permanent disability seriously
impairing mobility, non-residents similarly certified may obtain vehicle
identification for purposes of transportation to a school or place of
employment in city. All applicants for such permit must possess an oper-
ator's or chauffeur's license with any restrictions indicating special
restrictions, devices or equipment required for operation of the vehi-
cle.
§ 19-105 Highway operations. The commissioner shall have charge and
control of the following functions relating to the construction, mainte-
nance and repair of public roads, streets, highways, parkways, bridges
and tunnels: (i) regulating, grading, curbing, flagging and guttering of
streets, including marginal streets, and the laying of crosswalks; (ii)
designing, constructing, resurfacing and repairing all public roads,
streets, highways and parkways; (iii) the relaying of all pavement
removed for any cause; (iv) the filling of sunken lots, fencing vacant
lots, digging down of lots and the licensing of vaults under sidewalks;
(v) regulation of the use and transmission of gas, electricity, pneumat-
ic power and steam for all purposes in, upon, across, over and under all
streets, roads, avenues, parks and all public places; regulation of the
construction of electric mains, conduits, conductors and subways in any
streets, roads, avenues, parks or public places and the issuance of
permits to builders and others to use or open a street; and to open the
same for the purpose of carrying on the business of transmitting,
conducting, using and selling gas, electricity or steam or for the
service of pneumatic tubes, provided, however, this section is not to be
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seen as to grant permission to open or use the streets except by persons
or corporations otherwise duly authorized to carry on such business
specified above; (vi) construction, alteration and maintenance of all
bridges and tunnels. The commissioner shall issue a report to mayor,
city council and city residents about the condition of the bridges and
tunnels operated and maintained by the department with such report due
on March first, as of December thirty-first of preceding calendar year.
The report shall include a description of all capital and revenue budget
funds appropriated for rehabilitation and maintenance of bridges and
tunnels as well as the program developed by the commissioner for the
maintenance of all bridges and tunnels in the city of Staten Island;
(vii) removal of encroachments on public roads, streets, highways and
parkways, with the exception of weed removal, grass cutting and clipping
and other horticultural operations which are to be executed by the parks
department, and de-icing and snow removal operations are to be carried
out by the department of sanitation; (viii) clearing, grubbing, grading,
filling or excavating of vacant lots and other land areas; (ix) instal-
lation of metal chain link fences or barriers on overpasses, footbridg-
es, bridges or walkways; and (x) designing, constructing and maintaining
a lighting system for streets, highways, parks and public places in the
city.
§ 19-106 Ferries and related facilities. The commissioner shall main-
tain and operate the ferries of the city. The commissioner shall be
responsible for designing, constructing, maintaining or controlling all
ferry boats, ferry houses, ferry terminals and equipment; all wharf
property and roads or streets adjacent to such wharves, ferry houses or
terminals, including parking sites and related facilities. The commis-
sioner shall have charge and control of all marine operations within the
city and the power to regulate public and private ferry operations orig-
inating or terminating in the city. The commissioner shall establish
tours of ferry facilities and their related operations as well as tours
of the New York harbor at fees to be established by the commissioner and
may publicize and advertise the same. The commissioner shall construct,
operate and maintain marinas and public boat launching ramps and related
ferry facilities and collect fees for the use of such facilities. Fees
collected are to be deposited in a special fund for continued mainte-
nance, operation or reconstruction of public marine facilities.
§ 19-107 Mass transportation facilities. The commissioner shall
prepare or review plans and recommendations for the nature,
construction, location, operation and financing of roads, highways,
bridges, tunnels, railroads or other facilities for mass transportation
for use, in whole or in part, within the city, whether or not the funds
provided for such facilities are derived from the city treasury. The
commissioner shall develop and coordinate planning and programming for
all forms of mass transportation within Staten Island, whether or not
transportation is within the sole operating jurisdiction of Staten
Island. The commissioner shall make recommendations to the mayor, the
Metropolitan Transportation Authority or any of its subsidiaries, the
Port Authority of New York and New Jersey and other city, state and
federal agencies concerning the mass transit needs of the city of Staten
Island.
§ 19-108 Duties and obligations of a property owner with regard to
sidewalks, fencing or filling of vacant lots or cutting down raised
lots. The owner of any property, at his or her own cost shall:
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1. Install, reconstruct, repave and repair the sidewalk in front of or
abutting such property, to include intersection quadrant in the case of
corner property; and
2. Fence any vacant lot comprising all or part of his or her property
and fill any sunken lots on such property or cut down any raised lot or
lots comprising all or part of the property whenever the transportation
department shall so order. In the event a property owner fails to comply
with such order or the provisions of this section, the transportation
department may have the work performed at the expense of the owner.
§ 19-109 Right of entry. The commissioner may enter public or private
property for the purpose of making surveys, borings or other investi-
gations necessary for the performance of department duties. Refusal to
permit such entry shall be triable by the judge in a criminal court of
Staten Island.
Title 20 - Consumer Affairs
§ 20-102 Definitions. Wherever used in this title:
1. "Commissioner" shall mean the commissioner of consumer and worker
protection.
2. "Department" shall mean the department of consumer and worker
protection.
3. "License" shall mean an authorization by the department of consumer
and worker protection to carry on various activities within its juris-
diction, which may take the form of a license, permit, registration,
certification or such other form as is designated under law, regulation
or rule.
4. "Organization" shall mean a business entity, including but not
limited to a corporation, trust, estate, partnership, cooperative, asso-
ciation, firm, club or society.
5. "Person" shall mean a natural person or an organization.
6. "Trade name" shall mean that name under which an organization or
person solicits, engages in, conducts or transacts a business or activ-
ity.
§ 20-103 Powers of the commissioner. 1. The commissioner shall plan,
make recommendations, conduct research and develop programs for consumer
and worker education and protection, facilitate the exchange of informa-
tion in consultation with agencies, federal and state officials, commer-
cial interests, private groups and coordinate the consumer and worker
protection activities of other city agencies.
2. The commissioner shall enforce all laws in relations to weights and
measures.
3. The commissioner shall have control of granting, issuing, trans-
ferring, renewing, revoking, suspending and cancelling of all licenses
and permits, except in the cases with respect to which any of said
powers are conferred on other persons or agency by laws, and shall
collect all fees for licenses.
All licenses or permits in effect on the date of establishment shall
be continued until their date of expiration or sixty days, whichever
shall be longer. Any license or permit expiring within a thirty-day
period prior to the date of establishment shall be continued for a peri-
od of sixty days.
A licensee or permittee must notify and register with the department
if the license or permit is to extend beyond sixty days of the date of
establishment.
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4. The commissioner shall enforce all laws relating to advertising and
offering for sale and the sale of all commodities, goods, wares and
services; in addition he or she shall receive complaints and initiate
his or her own investigations and take appropriate action, including
referral to a federal or state agency.
5. The commissioner shall be authorized to hold public and private
hearings, administer oaths, take testimony, serve subpoenas, receive
evidence, and to receive, administer, pay over and distribute monies
collected in and as a result of actions brought for violations of laws
relating to deceptive or unconscionable trade practices.
Title 21 - Human Services
§ 21-102 Commissioner. There shall be a department of human services
the head of which shall be the commissioner of human services.
§ 21-103 Powers and duties. The commissioner shall have the powers
and perform the duties of a commissioner of human services under the
social services law, provided that no form of outdoor relief shall be
dispensed by the city except under the provisions of a state or local
law which shall specifically provide the method, manner and conditions
of dispensing the same.
§ 21-104 Public institutions under the commissioner. The commissioner
shall control, maintain and operate such institutions as are now or may
be put under his or her control.
§ 21-202 Division for the aging. There shall be within the department
a division for the aging.
§ 21-203 Power and duties. It shall be the power and duty of the divi-
sion for the aging:
1. to stimulate community interest in the problems of the aging;
2. to promote public awareness of resources available for the aging,
and to refer the public to appropriate departments and agencies of the
city, state and federal governments for advice, assistance and available
services in connection with particular problems;
3. to cooperate with and assist local neighborhoods in the develop-
ment of programs and the establishment of local offices;
4. to disburse available city, state and federal funds to programs
throughout the city and, when practical, coordinate such funds with
available funding from the private sector;
5. to promulgate rules and regulations for the operation of facili-
ties, services and programs under its jurisdiction; and
6. to maintain, operate and control such programs and facilities, as
may be necessary or required for the proper administration of the divi-
sion.
§ 21-301. Division for youth services. 1. There shall be within the
department a division for youth services.
2. With respect to youth services the commissioner shall have all the
powers and duties of a youth bureau as such bureau is described in arti-
cle nineteen-A of the executive law and shall in addition have the
following powers and duties:
(a) to disburse available city, state and federal, and private-sector,
when applicable, funds to programs for youth throughout the city;
(b) to maintain, operate and control such youth programs and facili-
ties as necessary; and
(c) to promulgate rules and regulations for the operation of facili-
ties, services and programs within the department's jurisdiction.
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§ 21-402 Division of homeless services. There shall be within the
department a division of homeless services.
§ 21-403 Powers and duties; director. 1. The head of the division of
homeless services shall be the director. The director shall have the
powers and perform the duties of a commissioner of human services under
the social services law for the purpose of fulfilling his or her respon-
sibilities.
2. The director, in the performance of his or her functions, shall:
(a) be responsible for transitional housing and services provided by
the city for eligible homeless families and individuals. The director
shall encourage the participation of and receive proposals from the
public and private sectors for the development of transitional housing
and services for homeless families and individuals. In performing such
duties, the director may develop and issue requests for such proposals
and evaluate responses thereto, negotiate, award, and administer
contracts, loans or other agreements, and obtain all necessary
approvals. For-profit and not-for-profit entities shall be eligible to
submit proposals, bid on contracts and other agreements, and apply for
grants and loans;
(b) plan and implement a redesign and restructuring of the system for
the provision of transitional housing and services for homeless families
and individuals;
(c) in consultation with other appropriate governmental agencies, plan
housing for homeless families and individuals;
(d) develop programs designed to improve access of homeless families
and individuals to existing housing;
(e) maintain, repair and rehabilitate transitional housing owned,
operated or managed by the division;
(f) establish performance criteria, goals and objectives with respect
to contract providers and monitor and evaluate such performance; and
(g) in consultation with other appropriate governmental agencies,
develop and operate outreach programs to identify and assist families
and individuals who are homeless and living in public spaces and partic-
ipate in the development of prevention programs to assist families and
individuals who are in imminent danger of becoming homeless.
3. In addition, the director is authorized, in consultation with
appropriate agencies, to provide any other services he or she deems
necessary to implement and effectuate the provisions of this title.
Title 22 - Economic Development
§ 22-102 Commissioner. The head of the department shall be the commis-
sioner of economic development.
§ 22-103 Powers and duties of the commissioner. The commissioner shall
have charge and control of and be responsible for all functions and
operations of the city relating to business and economic development,
the enhancement of economic development and financial opportunity for
minority and women owned business enterprises and ensuring equal employ-
ment opportunity by city contractors.
1. Such powers and functions shall include, without limitation, the
following:
(a) to establish business, industrial and commercial policies,
programs and projects which affect the business, industrial, commercial
or economic well-being, development, growth and expansion of the econom-
ic life of the city;
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(b) to serve as liaison for the city with local development corpo-
rations, other not-for-profit corporations and all other entities
involved in economic development within the city;
(c) to study, organize, promote, coordinate and carry out within or
without the city, activities, projects and programs designed to encour-
age, stimulate and foster the well-being, development, growth and expan-
sion of business, industry and commerce in the city, and to enhance and
protect the economic life of the city;
(d) to assist, encourage and promote broadened employee ownership,
particularly through the use of employee stock ownership plans and
producer cooperatives, by conducting research, outreach and public
information programs regarding such ownership; by providing technical
assistance to employee groups exploring employee buyouts, and by ensur-
ing that firms applying for financial assistance from any entity
involved with economic development in the city shall be correctly
advised as to the potential advantages of forming an employee stock
ownership plan;
(e) to serve as a clearinghouse in connection with efforts to devise
solutions for problems affecting business, industry or commerce in the
city;
(f) to promote and encourage the location and development of markets
for city products;
(g) to promote and encourage the location and development of new busi-
ness and industry in the city, as well as the maintenance and expansion
of existing business and industry in the city;
(h) to promote, coordinate and implement activities, projects and
programs designed to attract foreign direct investment and promote over-
seas sales by firms in the city, and to otherwise encourage and stimu-
late the development of international business, commerce and trade in
the city;
(i) to administer and promote development of foreign trade zones with-
in the city;
(j) to study conditions affecting business, industry and commerce in
the city, and collect, disseminate and make studies with regard to the
information collected;
(k) to maintain a business information service in order to assist
business and industry in the city and to encourage businesses outside
the city to patronize the industrial establishments of the city;
(l) to make recommendations to the mayor concerning steps deemed
advisable for the promotion and advancement of business prosperity in
the city;
(m) to publicize the economic advantages and other factors which make
the city a desirable location for businesses;
(n) to collect, compile and distribute information dealing with the
facilities, advantages and attractions of the city and historic and
scenic points and places of interest therein;
(o) to plan and conduct informational programs and publicity designed
to attract tourists, vacationers, visitors and other interested persons
to the city and its attractions;
(p) to encourage and cooperate with public and private agencies,
organizations and groups to publicize the business and commercial advan-
tages of the city;
(q) to cooperate with and assist any corporation, organization or
agency, public or private, the objectives of which include the advance-
ment of business, industry prosperity, expansion of existing business,
A. 10030 1196
the creation of new job opportunities and provide support for any such
efforts or purposes; and
(r) to issue permits for the taking of motion pictures, and for the
taking of photographs and for the use or operation of television cameras
or other transmitting television equipment in, on or about city proper-
ty, streets, parks, piers, wharves, docks, bridges or tunnels.
2. The commissioner shall have the power and duty to exercise the
functions of the city relating to the development, redevelopment,
construction, operation, maintenance, management and regulation of
public markets, wharf property, waterfront property and airports within
the city, including, without limitation, the following:
(a) to have charge and control of the public markets of the city, to
fix fees for services, licenses and privileges in connection therewith,
to rent space and enter into leases therefor, and to regulate all facil-
ities in use as public markets for the public health, safety and
welfare;
(b) to have charge and control of wharf property and waterfront prop-
erty owned by the city and of the building, repairing, altering, main-
taining, strengthening, protecting, cleaning, dredging and deepening of
such property; provided that the commissioner may designate parcels of
waterfront property to be managed pursuant to this paragraph and leased
pursuant to paragraph (g) of this subdivision, by the commissioner of
general services and contracting, provided, any such designation to be
made in writing and with approval of the mayor;
(c) to have power to enforce with respect to public markets, water-
front property and any structures thereon under its jurisdiction, the
labor law and other such laws, rules or regulations as may govern any
such activities undertaken, as described in paragraph (b) of this subdi-
vision, and to establish and amend fees to be charged for the issuance
of such permits or certificates of completion;
(d) to have power to regulate waterfront property and any structures
on any waterfront property used in conjunction with commerce or naviga-
tion;
(e) to have power to regulate the use of marginal streets so that they
may be used to best advantage in connection with waterfront property and
to regulate by license or otherwise the transfer of goods and merchan-
dise upon, over or under such streets;
(f) to lease, subject to council approval, any wharf property belong-
ing to the city for purposes of commerce or in furtherance of naviga-
tion;
(g) to grant temporary permits, terminable at will, for a period not
exceeding three years for purposes of commerce or navigation and not
exceeding one year for other purposes;
(h) to set aside by order any wharf property owned by the city, which
has not been leased, for general wharfage purposes or for a special kind
of commerce and to revoke or modify such order at any time;
(i) to regulate the charges for wharfage, cranage and dockage of all
vessels or floating structures using any wharf property, such rates to
be fixed by rules of the commissioner;
(j) to sell, subject to the approval of the council, buildings, struc-
tures and other improvements on market property to a person leasing such
property;
(k) to manage and promote the economic development of all airports,
airplane landing sites, seaplane bases and heliports owned by the city
and to lease such property, provided that no such lease may be author-
ized by the commissioner until a public hearing has been held and after
A. 10030 1197
publication of notice in a newspaper of general circulation in the city
at least thirty days prior to such hearing;
(l) to have charge and control of the regulation for the health and
safety of the general public at all airports, airplane landing sites,
seaplane bases, heliports, marginal streets and parking facilities owned
by the city;
(m) to establish, amend and enforce rules for the proper care and use
of all public markets, wharf property, airports, heliports, airplane
landing sites or seaplane bases; the violation or failure to comply with
any such enforcement order shall be triable in criminal court and
punishable by not more than thirty days' imprisonment or a fine of not
less than one hundred dollars nor more than five thousand dollars, or
both;
(n) to have the exclusive power to regulate all privately owned
airports, airplane landing sites, seaplane bases and heliports, the
operations out of and into such bases, as well as the control of ground
effect craft;
(o) to promote and encourage the expansion and development of the city
as a center for intrastate, interstate and international freight trans-
portation; and
(p) to administer and enforce the provisions of the joining resolution
of the city in respect to any and all structures on waterfront property
used in connection with the furtherance of waterfront commerce on navi-
gation.
3. With respect to energy matters, the commissioner shall have the
power and duty:
(a) to plan, formulate, coordinate and advance energy policy for the
city;
(b) to analyze the energy and fuel needs of the city with respect to
all types of energy, to prepare intermediate and long-range plans, goals
and programs designed to meet such needs and to establish priorities
among them;
(c) to develop, implement and manage energy-related programs for
economic development and other purposes, including the administration of
the public utility service and to exercise all of the functions, powers
and duties of such public utility service; and
(d) to perform such other responsibilities with respect to energy
matters, including responsibilities delegated elsewhere by the city
charter, as the mayor shall direct.
§ 22-104 Waterfront plans. 1. No marginal street bulkhead line, pier-
head line or other similar line demarcating the extent of waterfront
development may be delineated, established or changed by the commission-
er except in accordance with the provisions of the city charter. The
commissioner may apply to the department of city planning to incorporate
such existing plans for the waterfront into the city map pursuant to the
procedure for review and approval of a change to the city map.
2. The commissioner may widen, open, construct, abandon or close any
marginal street or avenue included in such waterfront plans and shall
maintain the widened portion of such street and the widened portion of
such street shall not be a public street. Before acting under this
subdivision, the commissioner shall make a report to the department of
city planning including a map showing the proposed changes, but if the
department or, upon appeal of the action of the department, the appeals
board does not approve such proposal then it must be approved by the
council or the commissioner shall not proceed.
A. 10030 1198
§ 22-201 Division of economic and financial opportunity. 1. There
shall be a division of economic and financial opportunity within the
department.
2. The purpose of the division shall be to enhance the ability of
minority and women owned business enterprises to compete for city
contracts, to enhance city agencies' awareness of such enterprises and
to ensure their participation in the city procurement process.
3. In addition to the other purposes of this section, the division of
economic and financial opportunity shall also administer any programs
for small or locally-owned business enterprise programs as may be estab-
lished by law.
§ 22-301 Division of labor services. 1. There shall be a division of
labor services within the department and the commissioner shall adminis-
ter the provisions of this section and enforce a citywide program to
ensure that city contractors and subcontractors take appropriate action
to ensure that women and minority group members are afforded equal
employment opportunities, and that all persons are protected from
discrimination prohibited under the provisions of federal, state and
local laws regarding recruitment, employment, job assignment, promotion,
upgrading, transfer, layoff, termination or rates of compensation.
2. The commissioner shall also monitor compliance by contractors with
state and federal prevailing wage requirements.
§ 22-401 The city of Staten Island public utility service. The commis-
sioner or his or her designee shall serve as the director of the public
utility service established by provisions of the code of the preceding
municipality.
§ 22-402 Authorization for public utility service. Pursuant to article
fourteen-A of the general municipal law, the city hereby establishes a
public utility service, as such term is defined in section three hundred
sixty of such article, which is authorized to establish, construct,
lease, purchase, own, acquire, use or operate facilities within or with-
out the territorial limits of the city, for the purpose of furnishing to
itself or for compensation to its inhabitants any service similar to
that furnished by any public utility company specified in article four
of the public service law. For such purpose the city may purchase elec-
trical and other forms of energy from the state, or from any state agen-
cy, or other municipal corporation, or from any private or public corpo-
ration, and may sell or distribute such power to itself and to
residential, commercial, industrial and other customers. The city shall
possess any and all powers granted to a public utility service pursuant
to article fourteen-A of the general municipal law and any other appli-
cable provision of law.
§ 22-403 Acquisition of energy and facilities. The city shall
contract for or otherwise purchase or acquire hydroelectric or other
forms of energy as shall be available from the power authority of the
state of New York, the state, any state agency, any other municipal
corporation, or any private or public corporation, and shall arrange to
use, lease or acquire the transmission, substation and distribution
facilities necessary to furnish such power to the city and, for compen-
sation, to residential, commercial, industrial and other customers;
provided, however, that the city will not acquire or build any electric
or gas transmission or distribution facilities which are parallel to, or
duplicative of electric or gas transmission or distribution facilities
of any utility companies within the city, nor take any action to impair
any agreements, franchises, rights or obligations of any utility company
within the city including, to provide safe, adequate and efficient
A. 10030 1199
service to conduct its business in the city and to protect its assets
unless so authorized by further local law and public referendum.
§ 22-404 Distribution and sale of energy. The city shall arrange with
any utility companies for the distribution of energy through the use,
lease, or acquisition of transmission, substation and distribution
facilities within the service areas of such companies and for such
companies to act on behalf of the city for collection of charges for
such energy within such service areas, or for the sale of energy to such
companies for resale to customers within the service areas of such
companies.
§ 22-405 Rates. The fixing of rates for furnishing hydroelectric and
other forms of energy to residential, commercial, industrial and other
customers shall include consideration of (1) the actual cost to the city
for the purchase, distribution and delivery of such energy to such
customers, (2) the actual expenses necessary for administration of the
public utility service, including expenses for research and development,
and (3) any other costs or charges allowed under law, including but not
limited to, losses of tax revenues resulting from the operation of the
public utility service. Such rates shall be computed to provide revenue
in an amount not less than that necessary to recover fully such costs
and expenses. Such rates shall be subject to approval of the city coun-
cil.
§ 22-406 Municipal energy fund. Revenues received from the operation
of the public utility service shall be paid into a fund to be known as
the municipal energy fund. The revenues paid into such fund shall not
be revenues of the city, and payments from such fund shall be made with-
out appropriation and shall not be included in the expense budget of the
city. Nothing in this section shall prohibit the city from appropriating
expense or capital funds in connection with the public utility service,
nor shall payments from the municipal energy fund to the general fund be
prohibited.
§ 22-501 Bureau of ports and trade. There shall be a bureau of ports
and trade within the department of economic development.
§ 22-502 Definitions. As used in this title:
1. "Director" shall mean the director of the bureau of ports and
trade.
2. "Bureau" shall mean the bureau of ports and trade.
§ 22-503 Director. The head of the bureau shall be the director of
ports and trade.
§ 22-504 Powers and duties of the director. The director shall have
the power and duty to:
1. exercise the powers of a commissioner of public markets and a city
department of public markets under the agriculture and markets law;
2. have charge and control of the wharf property and waterfront prop-
erty owned by the city to the extent permitted by state law;
3. have power to regulate waterfront property and the structures on
the property such as wharves, piers, docks and bulkheads;
4. (a) have power to enforce, on waterfront property, the labor law
and other such laws, rules and regulations as may govern dredging, fill-
ing, removal, safety, maintenance, sanitary conditions, use and occupan-
cy of such structures on waterfront property; (b) issue permits or
certificates of completion in reference thereto; and (c) establish or
amend fees to be charged for the issuance of such permits with such fees
to be established by rules of the director;
A. 10030 1200
5. have power to regulate the use of marginal streets in connection
with wharf property and to regulate by license any transfer of goods or
merchandise on, over or under such marginal streets;
6. enforce provisions of the zoning resolutions of the city in respect
to structures used in conjunction with waterfront commerce or naviga-
tion;
7. lease, subject to approval of or authorization by the city council,
any wharf property belonging to the city for purposes of waterfront
commerce or in furtherance of navigation; leases shall be for such terms
and contain such conditions as provided by law and leases may be sold at
public auction;
8. grant temporary permits to use and occupy any wharf property
belonging to the city, such permits not to exceed one year and to termi-
nate at will;
9. set aside by order any wharf property belonging to the city, which
has not yet been leased, for any special kind of commerce, any class of
vessel or for general wharfage purposes;
10. regulate charges for wharfage, cranage and dockage of all vessels
or floating structures using any wharf property;
11. establish, amend and enforce all necessary rules for proper care
of all public markets, wharf property, waterfront property, airports,
airplane landing sites, seaplane bases and heliports owned by the city;
12. sell, subject to approval of or authorization by the city council,
buildings, structures and other improvements on market property or wharf
property;
13. manage and promote the economic development of all airports,
airplane landing sites, seaplane bases and heliports owned by the city;
14. have charge and control of the regulation for the health and safe-
ty of the general public at all airports, airplane landing sites, seap-
lane bases, heliports, marginal streets and parking facilities appurten-
ant thereto owned by city;
15. have power to regulate all privately owned airports, airplane
landing sites and seaplane bases;
16. promote, coordinate and implement projects, activities and
programs designed to attract foreign investment and overseas sales and
to otherwise encourage the development, growth and expansion of interna-
tional business, commerce and trade in the city; and
17. administer and promote development of foreign trade zones in the
city.
§ 22-505 Waterfront plans. All plans for the waterfront of the city
are continued in effect and may be changed by the director pursuant to
the procedure provided in this section.
The procedure for review and approval of any change to the plans for
the water front shall be the same as in the case of a change to the city
map and the director may apply to the department of city planning to
incorporate plans for the waterfront pursuant to the procedure for
review and approval of a change to the city map.
The director may widen, open, construct, abandon or close any marginal
street or avenue included in any plans for changes and the director
shall also maintain such widened portion of such streets. The director
may proceed with any proposed changes only if the department of city
planning approves the change; however, if the department of city plan-
ning does not approve, the director may not proceed unless the city
council authorizes, by a two-thirds vote, the director to proceed.
The department of city planning shall act on such proposed changes
within six weeks from the time of filing with the department of city
A. 10030 1201
planning and if it does not act within the six weeks, the director may
proceed with the changes.
Title 23 - Reserved
Title 24 - Environmental Protection
§ 24-101 Definitions. As used in this title:
1. "Commissioner" shall mean the commissioner of the department of
environmental protection.
2. "Department" shall mean the department of environmental protection.
§ 24-102 Commissioner. 1. The head of the department of environmental
protection shall be the commissioner of environmental protection.
2. The commissioner shall have the control of and be responsible for
all those functions and operations of the city relating to (a) provision
of adequate water supply; (b) disposal of sewage; (c) prevention of air,
water and noise pollution; (d) response to emergencies caused by
releases or threatened releases of hazardous substances; and (e)
collection and management of information concerning the amount, location
and nature of hazardous substances.
§ 24-103 Powers and duties of commissioner. The powers and duties of
the commissioner shall include, without limitation, the following:
1. Water resources control. (a) The commissioner shall have charge and
control, including the power to examine, of (i) all structures and prop-
erty connected with the supply and distribution of water for public use,
including all fire hydrants and water meters; (ii) furnishing the water
supply and maintaining its quality, including ample reserve contingen-
cies for future demand; and (iii) making and enforcing rules and regu-
lations governing and restricting use of water supply.
(b) The commissioner may examine any sources of water supply of
private companies supplying any portion of the city and may exercise
superintendence, regulation and control in respect thereof.
(c) The commissioner shall regulate and control emissions into water
of harmful or objectionable substances, contaminants or pollutants and
shall enforce all laws and regulations with respect to such emissions.
(d) The commissioner may make investigations and studies as necessary
for purpose of enforcement, control or elimination of pollution of the
waters and, for such purpose, may compel witnesses and take their testi-
mony under oath.
2. Sewage control. The commissioner shall have charge and control over
location, construction, alteration, repair, maintenance and operation of
all public and private sewers, intercepting sewers, disposal plants and
drainage systems.
The commissioner may adopt regulations with regard to the discharge
of sewage, refuse, factory waste and trade waste into the public sewers
for such discharge. The commissioner may also restrict, regulate or
prohibit the use of public sewers for such discharge and may prescribe
civil penalties for the violation thereof.
3. Air resources control. The commissioner shall regulate and control
the emission into the open air of harmful or objectionable substances,
including but not limited to, smoke, soot, dust, fumes, ash, gas vapors
and any products of combustion resulting from any fuel burning equip-
ment.
The commissioner shall enforce all laws, rules and regulations with
respect to such emissions. The commissioner shall make investigations
and studies as necessary for controlling and eliminating air pollution
and may compel witnesses and take their testimony under oath.
A. 10030 1202
4. Noise pollution control. The commissioner shall enforce all laws,
rules and regulations to eliminate noise pollution. The commissioner
shall make investigations, compel witnesses and take their testimony
under oath for such purposes.
The commissioner shall also undertake studies to determine permissible
sound levels and shall correct problems related to noise control.
5. Environmental consequences. The commissioner may review and comment
upon the environmental consequences of any activity that may have an
impact on the physical aspects of the environment and may be responsible
for investigating, evaluating and reporting such activities related to
fuel supply and demand, alternative sources of energy and resource
recovery.
6. Energy. The commissioner shall have the power and duty of formulat-
ing an energy policy for the city.
The commissioner shall analyze the needs of the city with regard to
all kinds of energy and fuel needs. The commissioner shall prepare
intermediate and long range plans, goals and programs to meet such
needs. The commissioner shall also study, organize, promote and carry
out activities and programs designed to encourage fuel and energy
conservation.
7. Emergency response. The commissioner shall (a) respond to emergen-
cies caused by releases of hazardous substances into the environment;
(b) take measures to protect the public health or welfare; and (c)
recover costs of such response measures from the responsible persons.
8. Community right-to-know. The commissioner shall (a) have the power
to collect, compile and manage information concerning the nature of
hazardous substances present in the city, and (b) make such information
available to the public and to city personnel responsible for responding
to hazardous substance emergencies.
§ 24-104 Environmental control board. 1. There shall be within the
department an environmental control board, the chairperson of which
shall be the commissioner, consisting of the commissioners of such
departments as the mayor and council shall determine.
2. The environmental control board may adopt and amend regulations not
inconsistent with any provision of law with regard to (a) regulating
emissions or pollutants into the air or waters from any land or water
sources, and (b) regulating or prohibiting the installation or
construction of any equipment giving forth such emissions or pollutants.
3. The board, concurrent with the jurisdiction of the criminal courts
of the city, shall enforce the provisions of the city charter, this code
and the code of the preceding municipality which relate to (a) cleanli-
ness of the streets; (b) disposal of wastes; (c) provision of adequate,
pure supply of water; (d) prevention of air, water and noise pollution;
(e) regulation of street peddling; (f) prevention of fire and danger to
life as designated by the fire commissioner; (g) construction and
inspection of structures of the city for sanitary conditions, safety,
occupancy and as designated by the buildings and real property commis-
sioner; (h) response to emergencies caused by release of hazardous
substances; and (i) reporting of all information with regard to amount,
labeling and location of all hazardous substances.
4. The board shall have concurrent jurisdiction with the board of
health to enforce provisions of the health code which the board of
health shall designate.
§ 24-105 Proceedings for violations. The environmental control board
shall conduct proceedings for the adjudication of violations of the
laws, rules and regulations enforced by the board.
A. 10030 1203
The form and wording of notices of violation shall be prescribed by
the board. Notices shall contain information advising the persons
charged with the manner and the time in which such person has to admit
or deny the charges. The notice shall also contain a warning that fail-
ure to plead in the time stated may result in a default decision entered
against such person, or failure to plead may be deemed an admission of
liability and shall be grounds for imposing a maximum penalty.
A judgment entered by the board pursuant to this section shall remain
in full force and effect for eight years.
The board may not enter any final decision or order pursuant to this
section unless the notice of violation shall have been served in the
manner as is prescribed for service of process by the civil practice law
and rules, with certain exceptions.
Title 25 - Reserved
Title 26 - Housing, Buildings, Construction and Maintenance
§ 26-101 Definitions. As used in this title:
1. "Commissioner" shall mean the commissioner of the department of
buildings and real property.
2. "Department" shall mean the department of buildings and real prop-
erty.
3. "Class" refers to the classification of buildings in the building
code or other applicable laws and shall also refer to the terms "class"
or "kinds" as used in the multiple dwelling law.
4. "Division" shall mean the division of housing preservation and
development.
§ 26-102 Commissioner. The head of the department shall be the commis-
sioner of buildings and real property.
§ 26-103 Department functions. The department shall enforce, with
respect to buildings and structures, the building code, zoning resol-
utions, multiple dwelling law, labor law and other regulations that may
govern the construction, alteration, maintenance, use, occupancy, safe-
ty, sanitary conditions or inspection of buildings or structures in the
city.
The department shall perform the functions of the city of Staten
Island relating to:
1. necessary legal action regarding designation of unsafe buildings or
structures and the removal or remedy thereof by demolition or sealing;
2. the shoring of unsafe buildings or structures;
3. testing and approval of all power-operated cranes, derricks or
other hoisting equipment used to raise and lower articles on the outside
of buildings, not to include cranes and derricks used in industrial
plants or yards;
4. location, construction, alteration and removal of signs, either
illuminated or non-illuminated, attached to the exterior of any build-
ings;
5. all surface and sub-surface construction within the curbline,
driveways and entrances thereto and the issuance of permits in reference
thereto;
6. regulation, testing and inspection of gas and electricity used for
light, heat or power purposes and all electric, gas and steam meters,
electric wires and lights furnished for the city; and
7. regulation, inspection and testing of wiring and appliances for
light, heat and power in or on any building or structure in the city,
except that the jurisdiction of the department shall not extend to
A. 10030 1204
waterfront property; which property and structures shall be under the
jurisdiction of the department of ports and trade.
§ 26-104 Powers and duties. 1. There shall be a main office of the
department.
2. Persons appointed as inspectors to perform functions of the depart-
ment shall have such qualifications as prescribed by the commissioner;
however, such qualifications shall include:
(a) a minimum of five years experience working at a construction
trade;
(b) a license as a professional engineer or architect issued pursuant
to the education law;
(c) a minimum of three years experience working at a construction
trade and a minimum of two years formal training in a construction
program in a college, technical college or trade school; or
(d) a minimum of two years experience working at a construction trade
or a minimum two years formal education in a construction program in a
college, trade or technical school and a minimum of three years partic-
ipation in an apprentice inspection program approved by the commissioner
and personnel director.
3. The commissioner shall have the following powers and duties, with
respect to buildings and structures:
(a) to examine, approve or disapprove construction or alteration plans
for any building or structure and to direct the inspection of such
building or structure;
(b) to require that the construction or alteration of any building,
including the installation or alteration of any service equipment there-
in, shall be in accordance with the provisions of laws and regulations
applicable thereto; and
(c) to issue certificates of occupancy for any building or structure
in the city, provided that:
(i) no building or structure may be occupied or used until a certif-
icate of occupancy has been issued;
(ii) if a building or structure for which a certificate of occupancy
has not previously been required or issued shall be altered in such a
way as to now require a certificate, the building may not be used for
any purpose until such certificate is issued;
(iii) no buildings altered or converted from one class to another
shall be occupied until a certificate has been issued; and, in cases
where the alteration did not necessitate the total vacating of the
building, the certificate must be issued within thirty days of the
completion of such work or the occupancy of the building may not contin-
ue;
(iv) the certificate of occupancy of a building or structure shall
certify that such structure conforms to requirements of all laws, rules
and regulations applicable thereto. Every certificate of occupancy
shall be binding and remain binding and conclusive upon all agencies and
officers of the city, unless vacated or modified by a court of competent
jurisdiction or a board of appeals, and upon the department of labor of
the state of New York;
(v) the commissioner may issue a temporary certificate of occupancy
for any part of a building, provided that such temporary use or occupan-
cy does not jeopardize life or property;
(vi) the commissioner may, in specific cases, permit experimental or
demonstration construction to obtain knowledge and information; the
commissioner may also submit reports on results thereof to the depart-
ment of buildings and real property; and
A. 10030 1205
(vii) the commissioner shall have the power and duty to conduct
inquiries to assist him or her in his or her department duties where
public safety is involved and he or she shall have subpoena power to
compel witnesses, administer oaths, and compel production of books,
papers and documents.
All certificates of occupancy in effect on the date of establishment
are continued.
§ 26-105 Appeals. Appeals may be taken from the decisions of the
commissioner to a three person board of appeals to be appointed by the
mayor; one of whom shall be an architect and one of whom shall be a
professional engineer.
§ 26-106 Inspection. The commissioner, or any officer of the depart-
ment authorized in writing by the commissioner, may enter and inspect
any building, structure, enclosure, premises or any part thereof or
anything attached thereto.
Any refusal to permit such entry or inspection shall be a misdemeanor
triable in criminal court and punishable, upon conviction, of not more
than thirty days imprisonment, a fine of not more than one hundred
dollars, or both.
§ 26-107 Public buildings and facilities. The department shall:
1. have charge and control over the plans and specifications for and
the construction of all buildings and facilities paid for in whole or in
part from the city treasury;
2. manage, alter, rejoin, operate, maintain and clean buildings,
facilities and offices leased or occupied for public use by more than
one city agency whose management, alteration, repair, operation, mainte-
nance or cleaning is paid for in whole or in part from the city treas-
ury, and as directed by the mayor, to perform services in space occupied
for public use by a single city agency;
3. except for the provisions of title five of the code of the preced-
ing municipality, employ, when in the commissioner's opinion such
services are necessary or desirable, qualified consultants in private
practice to aid the commissioner in carrying out his or her duties and
responsibilities with respect to public buildings or facilities; such
consulting or advisory services shall be performed under the supervision
of the commissioner;
4. consult with the agencies for whose use the buildings or structures
are intended in preparing and considering plans and specifications and
in carrying out such plans and specifications, and to consider any
recommendations made by such agency.
Notwithstanding the provisions of this section, the exercise of the
powers and duties set forth herein shall be subject to the jurisdiction
of any city agency performing urban renewal and public and publicly-aid-
ed housing functions to the extent, and in such areas, as directed by
the mayor;
5. exercise and perform such other powers and duties as may be
prescribed by law or delegated to him or her in relation to laboratory
testing of commodities and construction materials.
§ 26-108 Real property. The department, with respect to real property,
shall have power to:
1. purchase, lease, condemn or otherwise acquire real property for the
city, subject to the joint approval or authorization of the mayor and
the council, and to sell, lease, exchange or otherwise dispose of real
property of the city, subject to the joint approval or authorization of
the mayor and the council;
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2. assign and reallocate to city agencies space and real property
owned or leased by the city, to establish comprehensive and continuing
programs and standards for utilization of space owned or leased by the
city and to conduct surveys of space utilization;
3. manage all real property of the city not used for public purposes,
including real property required for a public purpose and not being
currently utilized for such purpose, except wharf property; provided,
that the commissioner shall be responsible for the management, leasing
or permitting of any parcels of wharf property and water front property
as provided in any designation made by the commissioner of economic
development;
4. exercise and perform such other powers and duties as may be
prescribed by law or delegated to the commissioner in relation to the
acquisition, disposition, management, site selection, assignment, demo-
lition or other treatment of real property of the city;
5. employ, where desirable, managing agents to manage city properties
and collect rents and pay bills; and
6. keep, maintain and annually update a master list of leases wherein
the city or its agencies is a tenant.
§ 26-109 Building code. The building code which is in force in the
preceding municipality on the date and time when this title takes effect
and all existing provisions of the building code, including penalties
affixed for violations, shall continue to be binding and in full force,
except as amended from time to time by the city of Staten Island.
A copy of such code shall be on file in the office of the city clerk.
§ 26-201 Division of housing preservation and development. There shall
be a division of housing preservation and development within the depart-
ment.
§ 26-202 Powers and duties of the division. The division is vested
with:
1. all functions of the city relating to the rehabilitation, mainte-
nance, alteration and improvement of residential buildings and privately
owned housing, pursuant to various articles of the private housing
finance law; acting as liaison with the New York city rehabilitation
mortgage insurance corporation; the execution of emergency repairs to
and the sealing, removal and demolition of buildings, structures and
private housing and the enforcement of the applicable provisions of the
multiple dwelling law or others laws relating to the maintenance, use,
occupancy, safety or sanitary condition of any building which is occu-
pied, or intended to be occupied, as a home, residence or dwelling
place;
2. functions and duties with respect to the relocation of tenants of
real property and the selection of tenants for publicly owned or public-
ly aided housing;
3. all functions and duties of the city as related to slum clearance,
slum prevention and urban renewal, neighborhood conservation, rehabili-
tation and prevention of blighted, deteriorated or unsanitary areas, and
public housing, including regulation of rents in housing built with
state or local financing; and
4. functions, rights and powers granted to or delegated to the housing
and redevelopment board, the housing and development administration and
the New York city housing authority.
§ 26-203 Housing preservation and development; commissioner. With
respect to matters of housing preservation and development. The commis-
sioner shall:
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1. have the power to establish and administer programs designed to
encourage the rehabilitation and preservation of existing housing;
2. administer laws authorizing tax exemption or tax abatement and
process applications for such abatements and exemptions pursuant to
provisions of this code;
3. manage and superintend all real property acquired by the city for
housing and urban renewal purposes;
4. represent the city in carrying out the provisions of the private
housing finance law and act as the "supervising agency" pursuant to the
private housing finance law;
5. represent the city in carrying out the provisions of the general
municipal law, including acquiring, leasing or disposing of real proper-
ty;
6. undertake projects and exercise rights, powers, and privileges of
the applicable public housing law;
7. impose and collect charges and fees for financing, regulation,
supervision and audit of municipality-aided projects and loan programs
administered by the commissioner, with such moneys to be set aside in an
account for administrative expenses for the department;
8. acquire real property on behalf of other city agencies;
9. sell, lease, exchange or dispose of residential real property of
the city, provided that no such sale shall be authorized without the
mayor's and council's approval and until a public hearing has been held
and public notice given;
10. manage and superintend all residential real property of the city
not used for public purposes. The provisions of this subdivision are not
applicable to wharf property, real property under jurisdiction of the
Metropolitan Transportation Authority or the jurisdiction of the New
York city housing authority or the jurisdiction of the Triborough Bridge
and Tunnel Authority;
11. manage, demolish, seal or otherwise treat residential real proper-
ty as necessary; and
12. employ professional community and other personnel to manage resi-
dential real property.
§ 26-204 Inspection. 1. Inspections. A housing maintenance inspector
shall have such qualifications as prescribed by the department of
personnel after consultation with the commissioner.
2. Entry. The commissioner or any inspector may enter and inspect any
building, structure, enclosure, premises, or any part thereof and
refusal to permit such inspection shall be a misdemeanor triable in
criminal court, punishable by not more than thirty days imprisonment or
a fine of not more than one hundred dollars or both.
§ 26-205 Acquisitions of real property. No purchase, lease, condemna-
tion or acquisition of real property shall be authorized until (i) a
public hearing has been held, and (ii) the department shall have
received the joint approval or authorization of the mayor and the coun-
cil.
In the case of acquisition by purchase or condemnation, a hearing as
described above shall not be required if a public hearing is already
being held with respect to such purchase pursuant to any other require-
ment of law.
Title 27 - Health and Mental Hygiene
§ 27-101 Definitions. As used in this title:
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1. "Commissioner" shall mean the commissioner of the department of
health and mental hygiene.
2. "Department" shall mean the department of health and mental
hygiene.
§ 27-102 Powers and duties of commissioner. The commissioner shall
have the powers and duties of the department which shall include but
shall not be limited to:
1. Determining the needs of the mentally disabled in the city, which
determination shall include the review and evaluation of all mental
hygiene services and facilities within the commissioner's jurisdiction;
2. Engaging in short-range, intermediate-range and long-range mental
hygiene planning;
3. Developing and submitting to the mayor and council a program for
the delivery of services for the developmentally disabled, including
construction and operation of facilities;
4. Arranging with the approval of the mayor, for the rendition of
services and operation of facilities by other agencies of the city;
5. Within the amounts appropriated therefor, entering into contracts
for the rendition or operation of services and facilities on a per capi-
ta basis or otherwise;
6. Within the amounts appropriated therefor, executing such programs
and maintaining such facilities as may be authorized under such appro-
priations;
7. Using the services and facilities of public or private voluntary
institutions whenever practical, and encouraging all providers of
services to cooperate with or participate in the program, whether by
contract or otherwise;
8. Implementing and administering an inclusive citywide planning proc-
ess for the delivery of services for the developmentally disabled;
consistent with applicable law, standards and procedures for community
participation at the local community level;
9. Encouraging the development and expansion of programs for the
prevention, diagnosis, care, treatment, social and vocational rehabili-
tation, special education and training of the developmentally disabled
and for public education or developmental disability;
10. Establishing coordination and cooperation among all providers of
services, coordinating the department's program with the program of the
state department of mental hygiene so that there is a continuity of care
among all providers of services; and seeking to cooperate by mutual
agreement with the state department of mental hygiene and their repre-
sentatives in preadmission screening and in post-hospital care of
persons suffering from developmental disability;
11. Making policy and planning for, monitoring, evaluating and exer-
cising general supervision over all services and facilities for the
developmentally disabled within the commissioner's jurisdiction; and
exercising general supervisory authority through the promulgation of
appropriate standards consistent with accepted professional practices
for care and treatment of patients;
12. To the extent necessary, when not inconsistent with any other law,
arranging for the visitation, inspection and investigation of all
providers of services, by the department or otherwise;
13. Conducting such inquiries as may be useful, including investi-
gations into individual patient care, in performing the functions of the
department and for such purpose the commissioner shall have subpoena
power to compel the attendance of witnesses, to administer oaths and to
compel the production of books, papers and documents and consistent with
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the provisions of the mental hygiene law, having access to otherwise
confidential patient records, provided such information is requested
pursuant to the functions, powers and duties conferred upon the commis-
sioner by law;
14. Submitting all materials required by the mental hygiene law for
purposes of state reimbursement;
15. Serving as a member of such state or federally authorized commit-
tees as may be appropriate to the discharge of the commissioner's func-
tions;
16. Performing such other acts as may be necessary and proper to carry
out the provisions of this title and the purposes of the mental hygiene
law;
17. Develop, promote, provide, coordinate and evaluate addiction
programs for the prevention of addiction, treatment and rehabilitation
for persons addicted to narcotics and other dangerous drugs, including,
but not limited to, the following functions:
(a) participate in cooperative efforts of federal, state, regional and
city agencies and programs dealing with the problems of addiction to
narcotics and other dangerous drugs;
(b) evaluate present and proposed research designs, demonstration
projects, treatment and service programs and other requests related to
such prevention and care, before public funds are made available there-
for;
(c) promote or provide research and demonstration projects designed to
obtain information relating to the prevention of addiction and the
related treatment provided to drug addicts by public or voluntary
private agencies supported by city funds;
(d) promote or provide an educational and prevention program to
acquaint the public with the problems of addiction;
(e) promote or provide treatment agents for persons addicted to
narcotics, including, but not limited to, drug free programs, chemother-
apeutic programs and a school based drug prevention program;
(f) annually report to the city council, by March first as of the
preceding December thirty-first, on all treatment agents promoted or
provided during the year and proposed to be provided or promoted during
the current year, with particular attention given to the balance between
the treatment agents and their relative effectiveness; and
(g) promote or provide training programs for persons in public or
voluntary private agencies and institutions engaged in the prevention,
treatment and rehabilitation of persons addicted to narcotics.
§ 27-103 Functions of the department. Except as otherwise provided by
this title and law, the department shall perform all those functions and
operations that relate to health and mental hygiene related needs of the
people of the city.
§ 27-104 Construction clause. The provisions of this title shall be
carried out subject to and in conjunction with the provisions of the
mental hygiene law.
§ 15-001. The sum of six million dollars ($6,000,000), or so much
thereof as may be necessary, is hereby appropriated as an advance out of
any moneys in the general fund to the credit of the local assistance
account not otherwise appropriated and shall be made immediately avail-
able, for the expenses of the city of Staten Island, in carrying out the
provisions of this act relating to the transition government and estab-
lishment of such city. Notwithstanding any provision of law such moneys
shall be payable on the audit and warrant of the comptroller on vouchers
certified or approved in the manner prescribed by law. Such advance
A. 10030 1210
shall be repaid from funds which shall be withheld by the state comp-
troller in equal payments over a period of five years out of the first
moneys available for the next succeeding payments of state aid appor-
tioned to the city of Staten Island as per capita aid for the support of
local government pursuant to section 54 of the state finance law.
§ 15-002. The sum of one million dollars ($1,000,000), or so much
thereof as may be necessary, is hereby appropriated as an advance out of
any moneys in the general fund to the credit of the local assistance
account not otherwise appropriated and shall be made immediately avail-
able, for the expenses of the city school district of the city of Staten
Island, in carrying out the provisions of this act relating to the
establishment of the city school district of such city. Notwithstanding
any provision of law such moneys shall be payable on the audit and
warrant of the comptroller on vouchers certified or approved in the
manner prescribed by law. Such advance shall be repaid from funds which
shall be withheld by the state comptroller in equal payments over a
period of five years out of the first moneys available for the next
succeeding payments of education aid apportioned to the city of Staten
Island as aid for the support of education.
§ 16-001. Severability. The provisions of this act shall be severable,
and if the application of any clause, sentence, paragraph, subdivision,
section or part of this act to any person or circumstance shall be
adjudged by any court of competent jurisdiction to be invalid, such
judgment shall not necessarily affect, impair or invalidate the applica-
tion of any such clause, sentence, paragraph, subdivision, section, part
of this act or remainder thereof, as the case may be, to any other
person or circumstance, but shall be confined in its operation to the
clause, sentence, paragraph, subdivision, section or part thereof
directly involved in the controversy in which such judgment shall have
been rendered.
§ 17-001. This act shall take effect immediately; provided, however,
that:
(a) the provisions of sections 7-009, 7-010, 13-001, 15-001 and 15-002
of this act shall take effect on the first of January next succeeding
the date on which it shall have become a law;
(b) the provisions of sections 7-001 through 7-008, 8-001 through
8-024, 9-001 through 9-012, 9-050 through 9-053, 10-001 through 10-008,
11-001, 12-001 through 12-020 and 14-001 of this act shall take effect
on the first of July in the second year next succeeding the date on
which it shall have become a law;
(b-1) the amendments made to subdivisions 8 and 14 of section 2554 of
the education law by sections 4-007 and 4-008 of this act, respectively,
shall take effect upon the revival of such subdivisions as provided in
section 34 of chapter 91 of the laws of 2002, as amended;
(c) provided that the amendments to paragraphs (a), (b), (c), (d),
(e), and (f) of subdivision 2 of section 209 of the social services law
made by section 8-021 of this act shall take effect on the same date and
same manner as section 2 of part Z of chapter 56 of the laws of 2023,
takes effect;
(d) the amendments to the second undesignated paragraph of subdivision
4 of section 246 of the executive law made by section 8-004 of this act
shall be subject to the expiration and reversion of such paragraph
pursuant to subdivision (aa) of section 427 of chapter 55 of the laws of
1992, as amended, when upon such date the provisions of section 8-004-a
of this act shall take effect; and
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(e) provided that the amendments made to sections 257-c, 262, 266 and
267 of the executive law made by sections 8-007, 8-008, 8-009 and 8-010
of this act shall not affect the expiration or repeal of such sections
and shall be deemed expired and repealed therewith.
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