S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   6649
 
                        2019-2020 Regular Sessions
 
                           I N  A S S E M B L Y
 
                              March 14, 2019
                                ___________
 
 Introduced by M. of A. CRESPO -- read once and referred to the Committee
   on Ways and Means
 
 AN  ACT to amend the tax law, in relation to thresholds for establishing
   presence, residency or doing business in the  state  for  out-of-state
   companies  including affiliates of in-state companies that temporarily
   provide resources and personnel in the state during a state  of  emer-
   gency declared by the governor or the President of the United States
 
   THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section 1. The tax law is amended by adding a new article 42  to  read
 as follows:
                                ARTICLE 42
      FACILITATING BUSINESS RAPID RESPONSE TO STATE DECLARED DISASTER
 SECTION 3100. SHORT TITLE.
         3101. DEFINITIONS.
         3102. BUSINESS AND EMPLOYEE STATUS DURING DISASTER PERIOD.
         3103. TRANSACTION TAXES AND FEES.
         3104. BUSINESS OR EMPLOYEE ACTIVITY AFTER DISASTER PERIOD.
         3105. NOTIFICATION  OF  OUT-OF-STATE  BUSINESS  DURING  DISASTER
                 PERIOD.
         3106. NOTIFICATION OF INTENT TO REMAIN IN STATE.
         3107. TAX EXEMPT OVERTIME EARNINGS.
         3108. SEVERABILITY.
   § 3100. SHORT TITLE. THIS ARTICLE SHALL BE KNOWN AND MAY BE  CITED  AS
 THE  "FACILITATING  BUSINESS  RAPID RESPONSE TO STATE DECLARED DISASTERS
 ACT OF 2019".
   § 3101. DEFINITIONS. FOR PURPOSES OF THIS ARTICLE, THE FOLLOWING TERMS
 SHALL HAVE THE FOLLOWING MEANINGS:
   1. "REGISTERED BUSINESS IN THE STATE" (OR "REGISTERED BUSINESS") MEANS
 A BUSINESS ENTITY THAT IS CURRENTLY REGISTERED TO  DO  BUSINESS  IN  THE
 STATE PRIOR TO THE DECLARED STATE DISASTER OR EMERGENCY.
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
              

                                                            LBD07173-01-9

 A. 6649                             2
 
   2.  "OUT-OF-STATE  BUSINESS" MEANS A BUSINESS ENTITY THAT HAS NO PRES-
 ENCE IN THE STATE AND CONDUCTS NO BUSINESS IN THE STATE  WHOSE  SERVICES
 ARE REQUESTED BY A REGISTERED BUSINESS OR BY A STATE OR LOCAL GOVERNMENT
 FOR  PURPOSES  OF  PERFORMING  DISASTER OR EMERGENCY RELATED WORK IN THE
 STATE.  OUT-OF-STATE  BUSINESS SHALL ALSO INCLUDE A BUSINESS ENTITY THAT
 IS AFFILIATED WITH THE REGISTERED BUSINESS IN THE STATE  SOLELY  THROUGH
 COMMON  OWNERSHIP. THE OUT-OF-STATE BUSINESS HAS NO REGISTRATIONS OR TAX
 FILINGS OR NEXUS IN THE STATE PRIOR TO THE DECLARED  STATE  DISASTER  OR
 EMERGENCY.
   3.  "OUT-OF-STATE EMPLOYEE" MEANS AN EMPLOYEE WHO DOES NOT WORK IN THE
 STATE, EXCEPT FOR DISASTER OR EMERGENCY RELATED WORK, DURING THE  DISAS-
 TER PERIOD.
   4.  "CRITICAL  INFRASTRUCTURE"  MEANS  PROPERTY AND EQUIPMENT OWNED OR
 USED BY COMMUNICATIONS NETWORKS, ELECTRIC GENERATION,  TRANSMISSION  AND
 DISTRIBUTION  SYSTEMS,  GAS  DISTRIBUTION  SYSTEMS, WATER PIPELINES, AND
 RELATED SUPPORT FACILITIES THAT SERVICE MULTIPLE CUSTOMERS  OR  CITIZENS
 INCLUDING, BUT NOT LIMITED TO, REAL AND PERSONAL PROPERTY SUCH AS BUILD-
 INGS, OFFICES, LINES, POLES, PIPES, STRUCTURES AND EQUIPMENT.
   5. "DECLARED STATE DISASTER OR EMERGENCY" MEANS A DISASTER OR EMERGEN-
 CY  EVENT  (A) FOR WHICH THE GOVERNOR HAS DECLARED A STATE OF EMERGENCY,
 (B) FOR WHICH A PRESIDENTIAL DECLARATION OF A FEDERAL MAJOR DISASTER  OR
 EMERGENCY  HAS  BEEN  ISSUED,  OR  (C) OTHER DISASTER OR EMERGENCY EVENT
 WITHIN THE STATE FOR WHICH A GOOD FAITH RESPONSE EFFORT IS REQUIRED, AND
 FOR WHICH THE DIRECTOR OF THE STATE OFFICE OF  EMERGENCY  MANAGEMENT  IS
 GIVEN NOTIFICATION FROM THE REGISTERED BUSINESS AND SUCH DIRECTOR DESIG-
 NATES  SUCH  EVENT  AS  A  DISASTER  OR  EMERGENCY  THEREBY INVOKING THE
 PROVISIONS OF THIS ARTICLE.
   6. "DISASTER PERIOD" MEANS A PERIOD THAT BEGINS WITHIN TEN DAYS OF THE
 FIRST DAY OF THE GOVERNOR'S DECLARATION OR THE  PRESIDENT'S  DECLARATION
 (WHICHEVER OCCURS FIRST) AND THAT EXTENDS FOR A PERIOD OF SIXTY CALENDAR
 DAYS  AFTER THE END OF THE DECLARED DISASTER OR EMERGENCY PERIOD, OR FOR
 ANY LONGER PERIOD AUTHORIZED BY THE COMMISSIONER.
   7. "DISASTER OR EMERGENCY RELATED WORK" MEANS  REPAIRING,  RENOVATING,
 INSTALLING,  BUILDING,  RENDERING  SERVICES OR OTHER BUSINESS ACTIVITIES
 THAT RELATE TO CRITICAL INFRASTRUCTURE THAT HAS BEEN  DAMAGED,  IMPAIRED
 OR DESTROYED BY THE DECLARED STATE DISASTER OR EMERGENCY.
   §  3102.  BUSINESS  AND  EMPLOYEE STATUS DURING DISASTER PERIOD. 1. AN
 OUT-OF-STATE BUSINESS THAT CONDUCTS  OPERATIONS  WITHIN  THE  STATE  FOR
 PURPOSES  OF  PERFORMING  WORK  OR  SERVICES RELATED TO A DECLARED STATE
 DISASTER OR EMERGENCY DURING THE DISASTER PERIOD SHALL NOT BE CONSIDERED
 TO HAVE ESTABLISHED A LEVEL OF PRESENCE THAT WOULD REQUIRE THAT BUSINESS
 TO REGISTER, FILE AND/OR REMIT  STATE  OR  LOCAL  TAXES  OR  THAT  WOULD
 REQUIRE THAT BUSINESS OR ITS OUT-OF-STATE EMPLOYEES TO BE SUBJECT TO ANY
 STATE LICENSING OR REGISTRATION REQUIREMENTS.  THIS INCLUDES ANY AND ALL
 STATE  OR LOCAL BUSINESS LICENSING OR REGISTRATION REQUIREMENTS OR STATE
 AND LOCAL TAXES OR FEES INCLUDING,  BUT  NOT  LIMITED  TO,  UNEMPLOYMENT
 INSURANCE, SALES AND USE TAX OR AD VALOREM TAX ON EQUIPMENT BROUGHT INTO
 THE STATE TEMPORARILY FOR USE DURING THE DISASTER PERIOD AND THEN SUBSE-
 QUENTLY  REMOVED FROM THE STATE.  FOR PURPOSES OF ANY STATE OR LOCAL TAX
 ON OR MEASURED BY, IN WHOLE OR IN PART, NET OR GROSS  INCOME,  INCLUDING
 BASE  AND  OVERTIME  PAY,  OR RECEIPTS, ALL ACTIVITY OF THE OUT-OF-STATE
 BUSINESS THAT IS CONDUCTED IN THIS STATE PURSUANT TO THIS ARTICLE  SHALL
 NOT  BE  TREATED  AS  OCCURRING IN THIS STATE WITH RESPECT TO ANY FILING
 REQUIREMENTS FOR SUCH TAX INCLUDING THE FILING REQUIRED FOR A UNITARY OR
 COMBINED GROUP OF WHICH THE OUT-OF-STATE BUSINESS MAY BE A  PART.  ALSO,
 FOR  THE  PURPOSES  OF  APPORTIONING  INCOME,  REVENUE,  OR RECEIPTS THE

 A. 6649                             3
 
 PERFORMANCE BY AN OUT-OF-STATE BUSINESS OF  ANY  DISASTER  OR  EMERGENCY
 RELATED  WORK  SHALL  NOT BE SOURCED TO OR SHALL NOT OTHERWISE IMPACT OR
 INCREASE THE AMOUNT OF INCOME, REVENUE, OR RECEIPTS APPORTIONED TO  THIS
 STATE.
   2.  ANY  OUT-OF-STATE  EMPLOYEE  AS  DEFINED  IN  SUBDIVISION THREE OF
 SECTION THIRTY-ONE HUNDRED ONE OF THIS ARTICLE SHALL NOT  BE  CONSIDERED
 TO  HAVE  ESTABLISHED  RESIDENCY  OR  A PRESENCE IN THE STATE THAT WOULD
 REQUIRE THAT PERSON OR THAT PERSON'S EMPLOYER TO  FILE  AND  PAY  INCOME
 TAXES  OR  TO  BE  SUBJECTED  TO TAX WITHHOLDINGS OR TO FILE AND PAY ANY
 OTHER STATE OR LOCAL  TAX  OR  FEE  DURING  THE  DISASTER  PERIOD.  THIS
 INCLUDES  ANY RELATED STATE OR LOCAL EMPLOYER WITHHOLDING AND REMITTANCE
 OBLIGATIONS FOR ANY OUT-OF-STATE EMPLOYEE'S BASE AND OVERTIME PAY.
   § 3103. TRANSACTION TAXES AND FEES. OUT-OF-STATE BUSINESSES  AND  OUT-
 OF-STATE  EMPLOYEES  SHALL BE REQUIRED TO PAY TRANSACTION TAXES AND FEES
 INCLUDING BUT NOT LIMITED TO FUEL TAXES OR SALES/USE TAXES ON  MATERIALS
 OR  SERVICES  SUBJECT TO SALES/USE TAX, HOTEL TAXES, CAR RENTAL TAXES OR
 FEES THAT THE OUT-OF-STATE AFFILIATED BUSINESS OR OUT-OF-STATE  EMPLOYEE
 PURCHASES  FOR USE OR CONSUMPTION IN THE STATE DURING THE DISASTER PERI-
 OD, UNLESS SUCH TAXES ARE OTHERWISE EXEMPTED DURING A DISASTER PERIOD.
   § 3104. BUSINESS OR EMPLOYEE ACTIVITY AFTER DISASTER PERIOD. ANY  OUT-
 OF-STATE  BUSINESS  OR  OUT-OF-STATE  EMPLOYEE THAT REMAINS IN THE STATE
 AFTER THE DISASTER PERIOD WILL BECOME  SUBJECT  TO  THE  STATE'S  NORMAL
 STANDARDS  FOR ESTABLISHING PRESENCE, RESIDENCY OR DOING BUSINESS IN THE
 STATE AND WILL THEREFORE BECOME RESPONSIBLE FOR ANY BUSINESS OR EMPLOYEE
 TAX REQUIREMENTS THAT ENSUE.
   § 3105. NOTIFICATION OF OUT-OF-STATE BUSINESS DURING DISASTER  PERIOD.
 1.  THE OUT-OF-STATE BUSINESS THAT ENTERS THE STATE SHALL, UPON REQUEST,
 PROVIDE THE DEPARTMENT A STATEMENT THAT IT IS IN THE STATE FOR  PURPOSES
 OF  RESPONDING  TO  THE  DISASTER  OR  EMERGENCY,  WHICH STATEMENT SHALL
 INCLUDE THE  BUSINESS'  NAME,  STATE  OF  DOMICILE,  PRINCIPAL  BUSINESS
 ADDRESS,  FEDERAL  TAX IDENTIFICATION NUMBER, DATE OF ENTRY, AND CONTACT
 INFORMATION.
   2. A REGISTERED BUSINESS IN THE STATE SHALL, UPON REQUEST, PROVIDE THE
 INFORMATION REQUIRED IN SUBDIVISION ONE OF THIS SECTION FOR  ANY  AFFIL-
 IATE THAT ENTERS THE STATE THAT IS AN OUT-OF-STATE BUSINESS. THE NOTIFI-
 CATION  SHALL  ALSO INCLUDE CONTACT INFORMATION FOR THE REGISTERED BUSI-
 NESS IN THE STATE.
   § 3106. NOTIFICATION OF INTENT TO REMAIN  IN  STATE.  AN  OUT-OF-STATE
 BUSINESS OR AN OUT-OF-STATE EMPLOYEE THAT REMAINS IN THE STATE AFTER THE
 DISASTER  PERIOD  SHALL COMPLETE STATE AND LOCAL REGISTRATION, LICENSING
 AND FILING REQUIREMENTS THAT ENSUE  AS  A  RESULT  OF  ESTABLISHING  THE
 REQUISITE  BUSINESS  PRESENCE OR RESIDENCY IN THE STATE APPLICABLE UNDER
 THE EXISTING RULES.
   § 3107. TAX EXEMPT OVERTIME EARNINGS. ANY INCOME OF A NEW  YORK  RESI-
 DENT  INDIVIDUAL  WHICH  IS  ATTRIBUTABLE  TO  OVERTIME  HOURS  DURING A
 DECLARED STATE DISASTER OR EMERGENCY AND WHICH IS DISASTER OR  EMERGENCY
 RELATED WORK, AS SUCH TERMS ARE DEFINED IN THIS ARTICLE, SHALL BE EXEMPT
 FROM TAXATION UNDER ARTICLE TWENTY-TWO OF THIS CHAPTER.
   §  3108.  SEVERABILITY. IF ANY CLAUSE, SENTENCE, PARAGRAPH, SECTION OR
 PART OF THIS ARTICLE SHALL BE ADJUDGED BY ANY COURT OF COMPETENT  JURIS-
 DICTION TO BE INVALID, THE JUDGMENT SHALL NOT AFFECT, IMPAIR, OR INVALI-
 DATE  THE  REMAINDER  THEREOF, BUT SHALL BE CONFINED IN ITS OPERATION TO
 THE CLAUSE,  SENTENCE,  PARAGRAPH,  SECTION  OR  PART  THEREOF  DIRECTLY
 INVOLVED  IN  THE  CONTROVERSY  IN  WHICH  THE  JUDGMENT SHALL HAVE BEEN
 RENDERED.

 A. 6649                             4
 
   § 2. This act shall take effect immediately.  Provided,  however,  the
 commissioner  of the department of taxation and finance is authorized to
 promulgate any rules or regulations, and  develop  and  issue  forms  or
 online processes necessary for the timely implementation of this act.