S T A T E O F N E W Y O R K
________________________________________________________________________
7908--A
2009-2010 Regular Sessions
I N A S S E M B L Y
April 28, 2009
___________
Introduced by M. of A. BING -- read once and referred to the Committee
on Ways and Means -- committee discharged, bill amended, ordered
reprinted as amended and recommitted to said committee
AN ACT to amend the tax law, in relation to an investment tax credit
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. Subparagraph (i) of paragraph (b) of subdivision 12 of
section 210 of the tax law, as amended by chapter 637 of the laws of
2008, is amended to read as follows:
(i) A credit shall be allowed under this subdivision with respect to
tangible personal property and other tangible property, including build-
ings and structural components of buildings, which are: depreciable
pursuant to section one hundred sixty-seven of the [internal revenue
code] INTERNAL REVENUE CODE, have a useful life of four years or more,
are acquired by purchase as defined in section one hundred seventy-nine
(d) of the [internal revenue code] INTERNAL REVENUE CODE, have a situs
in this state and are (A) 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, (B) industrial waste treatment facil-
ities or air pollution control facilities, used in the taxpayer's trade
or business, (C) research and development property, (D) principally used
in the ordinary course of the taxpayer's trade or business as a broker
or dealer in connection with the purchase or sale (which shall include
but not be limited to the issuance, entering into, assumption, offset,
assignment, termination, or transfer) of stocks, bonds or other securi-
ties as defined in section four hundred seventy-five (c)(2) of the
Internal Revenue Code, or of commodities as defined in section four
hundred seventy-five (e) of the Internal Revenue Code, (E) principally
used in the ordinary course of the taxpayer's trade or business of
providing investment advisory services for a regulated investment compa-
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD10639-02-9
A. 7908--A 2
ny as defined in section eight hundred fifty-one of the Internal Revenue
Code, or lending, loan arrangement or loan origination services to
customers in connection with the purchase or sale (which shall include
but not be limited to the issuance, entering into, assumption, offset,
assignment, termination, or transfer) of securities as defined in
section four hundred seventy-five (c)(2) of the Internal Revenue Code,
(E-1) PRINCIPALLY USED IN THE ORDINARY COURSE OF THE TAXPAYER'S TRADE OR
BUSINESS OF PROVIDING INVESTMENT ADVISORY SERVICES, OR THE SERVICE OF
MANAGING INVESTMENT PORTFOLIOS TO ACHIEVE SPECIFIC INVESTMENT OBJECTIVES
FOR ACCOUNTS OVER ONE MILLION DOLLARS OF ACCREDITED INVESTORS (AS THAT
TERM IS DEFINED IN RULE 501 OF REGULATION D OF THE SECURITIES ACT OF
1933), IF THE TAXPAYER SATISFIES THE FOLLOWING CRITERIA: (I) THE TAXPAY-
ER IS A REGULATED BROKER OR DEALER OR AN AFFILIATE OF A REGULATED BROKER
OR DEALER, (II) THE TAXPAYER IS REGISTERED AS AN INVESTMENT ADVISER
UNDER SECTION TWO HUNDRED THREE OF THE INVESTMENT ADVISER ACT OF 1940,
AS AMENDED, AND (III) AT LEAST ONE CLIENT OF THE TAXPAYER IS A REGULATED
INVESTMENT COMPANY AS DEFINED IN SECTION EIGHT HUNDRED FIFTY-ONE OF THE
INTERNAL REVENUE CODE THAT HAS ASSETS IN EXCESS OF ONE HUNDRED MILLION
DOLLARS, (F) principally used in the ordinary course of the taxpayer's
business as an exchange registered as a national securities exchange
within the meaning of sections 3(a)(1) and 6(a) of the Securities
Exchange Act of 1934 or a board of trade as defined in section
1410(a)(1) of the New York Not-for-Profit Corporation Law or as an enti-
ty that is wholly owned by one or more such national securities
exchanges or boards of trade and that provides automation or technical
services thereto, or (G) principally used as a qualified film production
facility including qualified film production facilities having a situs
in an empire zone designated as such pursuant to article eighteen-B of
the general municipal law, where the taxpayer is providing three or more
services to any qualified film production company using the facility,
including such services as a studio lighting grid, lighting and grip
equipment, multi-line phone service, broadband information technology
access, industrial scale electrical capacity, food services, security
services, and heating, ventilation and air conditioning. For purposes of
clauses (D), (E), (E-1) and (F) of this subparagraph, property purchased
by a taxpayer affiliated with a regulated broker, dealer, registered
investment adviser, national securities exchange or board of trade, is
allowed a credit under this subdivision if the property is used by its
affiliated regulated broker, dealer, registered investment adviser,
national securities exchange or board of trade in accordance with this
subdivision. For purposes of determining if the property is principally
used in qualifying uses, the uses by the taxpayer described in clauses
(D) [and], (E), AND (E-1) of this subparagraph may be aggregated. In
addition, the uses by the taxpayer, its affiliated regulated broker,
dealer, and registered investment adviser under [either or both] ANY of
those clauses may be aggregated. Provided, however, a taxpayer shall
not be allowed the credit provided by clauses (D), (E), (E-1) and (F) of
this subparagraph unless (I) eighty percent or more of the employees
performing the administrative and support functions resulting from or
related to the qualifying uses of such equipment are located in this
state or (II) the average number of employees that perform the adminis-
trative and support functions resulting from or related to the qualify-
ing uses of such equipment and are located in this state during the
taxable year for which the credit is claimed is equal to or greater than
ninety-five percent of the average number of employees that perform
these functions and are located in this state during the thirty-six
A. 7908--A 3
months immediately preceding the year for which the credit is claimed,
or (III) the number of employees located in this state during the taxa-
ble year for which the credit is claimed is equal to or greater than
ninety percent of the number of employees located in this state on
December thirty-first, nineteen hundred ninety-eight or, if the taxpayer
was not a calendar year taxpayer in nineteen hundred ninety-eight, the
last day of its first taxable year ending after December thirty-first,
nineteen hundred ninety-eight. If the taxpayer becomes subject to tax in
this state after the taxable year beginning in nineteen hundred ninety-
eight, then the taxpayer is not required to satisfy the employment test
provided in the preceding sentence of this subparagraph for its first
taxable year. For purposes of clause (III) of this subparagraph the
employment test will be based on the number of employees located in this
state on the last day of the first taxable year the taxpayer is subject
to tax in this state. If the uses of the property must be aggregated to
determine whether the property is principally used in qualifying uses,
then either each affiliate using the property must satisfy this employ-
ment test or this employment test must be satisfied through the aggre-
gation of the employees of the taxpayer, its affiliated regulated
broker, dealer, and registered investment adviser using the property.
For purposes of this subdivision, the term "goods" shall not include
electricity.
S 2. This act shall take effect immediately.