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
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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.