S T A T E O F N E W Y O R K
________________________________________________________________________
9112
I N A S S E M B L Y
January 21, 2020
___________
Introduced by M. of A. PHEFFER AMATO -- read once and referred to the
Committee on Ways and Means
AN ACT to amend the tax law, in relation to a tax on gross income upon
every corporation which derives income from the data individuals of
this state share with such corporations; and to amend the state
finance law, in relation to establishing the New York data fund
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. Section 209 of the tax law is amended by adding a new
subdivision 13 to read as follows:
13. NOTWITHSTANDING ANY OTHER PROVISION OF THIS CHAPTER, OR OF ANY
OTHER LAW, A TAX EQUAL TO FIVE PERCENT TAX ON THE GROSS INCOME IS HEREBY
IMPOSED UPON EVERY CORPORATION WHICH DERIVES INCOME FROM THE DATA INDI-
VIDUALS OF THIS STATE SHARE WITH SUCH CORPORATIONS.
§ 2. The state finance law is amended by adding a new section 99-hh to
read as follows:
§ 99-HH. DATA FUND. 1. A SPECIAL FUND TO BE KNOWN AS THE "NEW YORK
DATA FUND" IS HEREBY ESTABLISHED IN THE CUSTODY OF THE STATE COMPTROLLER
AND THE COMMISSIONER OF TAXATION AND FINANCE.
2. THE FUND SHALL CONSIST OF ALL MONIES TRANSFERRED TO SUCH FUND
PURSUANT TO LAW, ALL MONIES REQUIRED BY ANY PROVISION OF LAW TO BE PAID
INTO OR CREDITED TO THE FUND, ALL MONEYS DERIVED BY SUBDIVISION THIRTEEN
OF SECTION TWO HUNDRED NINE OF THE TAX LAW AND ANY INTEREST EARNINGS
WHICH MAY ACCRUE FROM THE INVESTMENT OF MONIES IN THE FUND. SUCH FUND
SHALL BE DIVIDED INTO AN EARNINGS RESERVE ACCOUNT AND A DIVIDEND FUND.
NOTHING CONTAINED IN THIS SECTION SHALL PREVENT THE STATE FROM RECEIVING
GRANTS, GIFTS OR BEQUESTS FOR THE PURPOSES OF THE FUND AS DEFINED IN
THIS SECTION AND DEPOSITING THEM INTO THE FUND ACCORDING TO LAW.
3. FOR THE PURPOSES OF THIS SECTION:
(A) "BOARD" MEANS THE BOARD OF TRUSTEES OF THE NEW YORK DATA FUND
BOARD.
(B) "FUND" MEANS THE NEW YORK DATA FUND.
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD09791-03-9
A. 9112 2
4. THERE IS ESTABLISHED THE NEW YORK DATA FUND BOARD. THE PURPOSE OF
THE BOARD IS TO MANAGE AND INVEST THE ASSETS OF THE DATA FUND AND OTHER
FUNDS DESIGNATED BY LAW PURSUANT TO THIS SECTION.
5. (A) THE BOARD CONSISTS OF SIX MEMBERS APPOINTED BY THE GOVERNOR.
TWO OF THE MEMBERS SHALL BE COMMISSIONERS OF DEPARTMENTS OF STATE
GOVERNMENT, ONE OF WHOM SHALL BE THE COMMISSIONER OF TAXATION AND
FINANCE. THE REMAINING FOUR MEMBERS SHALL BE APPOINTED AS FOLLOWS: ONE
BY THE TEMPORARY PRESIDENT OF THE SENATE; ONE BY THE MINORITY LEADER OF
THE SENATE; ONE BY THE SPEAKER OF THE ASSEMBLY; AND ONE BY THE MINORITY
LEADER OF THE ASSEMBLY. SUCH MEMBERS MAY NOT HOLD ANY OTHER STATE OR
FEDERAL OFFICE, POSITION OR EMPLOYMENT, EITHER ELECTIVE OR APPOINTIVE,
EXCEPT AS A MEMBER OF THE ARMED FORCES OF EITHER THE UNITED STATES OR OF
THIS STATE.
(B) THE FOUR PUBLIC MEMBERS OF THE BOARD MUST HAVE RECOGNIZED COMPE-
TENCE AND WIDE EXPERIENCE IN FINANCE, INVESTMENTS, OR OTHER BUSINESS
MANAGEMENT-RELATED FIELDS.
(C) THE BOARD SHALL ANNUALLY ELECT A CHAIRMAN FROM AMONG ITS MEMBERS.
(D) THE PUBLIC MEMBERS OF THE BOARD SHALL BE APPOINTED FOR TERMS OF
FOUR YEARS, AND THEY MAY BE REAPPOINTED. THE TERMS OF THE PUBLIC MEMBERS
SHALL BE STAGGERED SO THAT NO MORE THAN ONE TERM OF A PUBLIC MEMBER
EXPIRES EACH YEAR.
(I) A VACANCY ON THE BOARD SHALL BE PROMPTLY FILLED BY APPOINTMENT BY
THE GOVERNOR, SUBJECT TO APPROVAL BY THE SENATE. AN APPOINTEE TO A
VACANCY SHALL HOLD OFFICE FOR THE BALANCE OF THE TERM FOR WHICH THE
APPOINTEE'S PREDECESSOR ON THE BOARD WAS APPOINTED.
(II) A VACANCY ON THE BOARD DOES NOT IMPAIR THE AUTHORITY OF A QUORUM
OF THE BOARD TO EXERCISE ALL THE POWERS AND PERFORM ALL THE DUTIES OF
THE BOARD.
(E) FOUR MEMBERS OF THE BOARD CONSTITUTE A QUORUM FOR THE TRANSACTION
OF BUSINESS AND THE EXERCISE OF THE POWERS AND DUTIES OF THE BOARD.
ACTION MAY BE TAKEN ONLY UPON AFFIRMATIVE VOTE OF A MAJORITY OF THE FULL
MEMBERSHIP OF THE BOARD.
(F) PUBLIC MEMBERS OF THE BOARD RECEIVE AN HONORARIUM OF FOUR HUNDRED
DOLLARS FOR EACH DAY SPENT AT A MEETING OF THE BOARD OR AT A MEETING OF
A SUBCOMMITTEE OF THE BOARD OR AT A PUBLIC MEETING AS A REPRESENTATIVE
OF THE BOARD. MEMBERS OF THE BOARD ARE ENTITLED TO PER DIEM AND TRAVEL
ALLOWANCES AS PROVIDED BY LAW FOR MEMBERS OF STATE BOARDS AND COMMIS-
SIONS.
(G) IF A MEMBER OF THE BOARD OR AN EMPLOYEE OF THE CORPORATION
ACQUIRES, OWNS, OR CONTROLS AN INTEREST, DIRECT OR INDIRECT, IN AN ENTI-
TY OR PROJECT IN WHICH FUND ASSETS ARE INVESTED, THE MEMBER SHALL IMME-
DIATELY DISCLOSE THE INTEREST TO THE BOARD. THE DISCLOSURE IS A MATTER
OF PUBLIC RECORD AND SHALL BE INCLUDED IN THE MINUTES OF THE BOARD MEET-
ING NEXT FOLLOWING THE DISCLOSURE.
(H) ON OR BEFORE THE FIRST OF JANUARY EACH YEAR, THE COMMISSIONER OF
TAXATION AND FINANCE SHALL PROVIDE A WRITTEN REPORT TO THE TEMPORARY
PRESIDENT OF THE SENATE, SPEAKER OF THE ASSEMBLY, CHAIR OF THE SENATE
FINANCE COMMITTEE, CHAIR OF THE ASSEMBLY WAYS AND MEANS COMMITTEE, CHAIR
OF THE SENATE COMMITTEE ON CODES, CHAIR OF THE ASSEMBLY CODES COMMITTEE,
THE STATE COMPTROLLER AND THE PUBLIC. SUCH REPORT SHALL INCLUDE HOW THE
MONIES OF THE FUND WERE UTILIZED DURING THE PRECEDING CALENDAR YEAR, AND
SHALL INCLUDE, BUT NOT BE LIMITED TO:
(I) THE AMOUNT OF MONEY DISPERSED FROM THE FUND AND THE AWARD PROCESS
USED FOR SUCH DISBURSEMENTS; AND
(II) THE AMOUNT AWARDED TO EACH TAXPAYER.
A. 9112 3
6. (A) THE BOARD SHALL ADOPT RULES AND REGULATIONS SPECIFICALLY DESIG-
NATING THE TYPES OF INCOME-PRODUCING INVESTMENTS ELIGIBLE FOR INVESTMENT
OF FUND ASSETS. WHEN ADOPTING RULES AND REGULATIONS AUTHORIZED BY THIS
SECTION OR MANAGING AND INVESTING FUND ASSETS, THE PRUDENT-INVESTOR RULE
SHALL BE APPLIED BY THE BOARD. THE PRUDENT-INVESTOR RULE AS APPLIED TO
INVESTMENT ACTIVITY OF THE FUND MEANS THAT THE BOARD SHALL EXERCISE THE
JUDGMENT AND CARE UNDER THE CIRCUMSTANCES THEN PREVAILING THAT AN INSTI-
TUTIONAL INVESTOR OF ORDINARY PRUDENCE, DISCRETION, AND INTELLIGENCE
EXERCISES IN THE DESIGNATION AND MANAGEMENT OF LARGE INVESTMENTS
ENTRUSTED TO IT, NOT IN REGARD TO SPECULATION, BUT IN REGARD TO THE
PERMANENT DISPOSITION OF FUNDS, CONSIDERING PRESERVATION OF THE PURCHAS-
ING POWER OF THE FUND OVER TIME WHILE MAXIMIZING THE EXPECTED TOTAL
RETURN FROM BOTH INCOME AND THE APPRECIATION OF CAPITAL.
(B) THE BOARD MAY NOT BORROW MONEY OR GUARANTEE FROM PRINCIPAL OF THE
FUND THE OBLIGATIONS OF OTHERS, EXCEPT AS PROVIDED IN THIS SUBDIVISION.
WITH RESPECT TO INVESTMENTS OF THE FUND, THE BOARD MAY, EITHER DIRECTLY
OR THROUGH AN ENTITY IN WHICH THE INVESTMENT IS MADE, BORROW MONEY IF
THE BORROWING IS NONRECOURSE TO THE BOARD AND THE FUND.
(C) THE BOARD SHALL MAINTAIN A REASONABLE DIVERSIFICATION AMONG
INVESTMENTS UNLESS, UNDER THE CIRCUMSTANCES, IT IS CLEARLY PRUDENT NOT
TO DO SO. THE BOARD SHALL INVEST THE ASSETS OF THE FUND IN IN-STATE
INVESTMENTS TO THE EXTENT THAT IN-STATE INVESTMENTS ARE AVAILABLE AND IF
THE IN-STATE INVESTMENTS:
(I) HAVE A RISK LEVEL AND EXPECTED RETURN COMPARABLE TO ALTERNATE
INVESTMENT OPPORTUNITIES; AND
(II) ARE ELIGIBLE FOR INVESTMENT OF FUND ASSETS.
(D) THE BOARD MAY ENTER INTO AND ENFORCE ALL CONTRACTS NECESSARY,
CONVENIENT, OR DESIRABLE FOR MANAGING THE FUND'S ASSETS AND CORPORATE
OPERATIONS, INCLUDING CONTRACTS FOR FUTURE DELIVERY TO IMPLEMENT ASSET
ALLOCATION STRATEGIES OR TO HEDGE AN EXISTING EQUIVALENT OWNERSHIP POSI-
TION IN AN INVESTMENT.
7. NET INCOME OF THE FUND INCLUDES INCOME OF THIS FUND. NET INCOME OF
THE FUND SHALL BE COMPUTED ANNUALLY AS OF THE LAST DAY OF THE FISCAL
YEAR IN ACCORDANCE WITH GENERALLY ACCEPTED ACCOUNTING PRINCIPLES,
EXCLUDING ANY UNREALIZED GAINS OR LOSSES. INCOME AVAILABLE FOR DISTRIB-
UTION EQUALS TWENTY-ONE PERCENT OF THE NET INCOME OF THE FUND FOR THE
LAST FIVE FISCAL YEARS, INCLUDING THE FISCAL YEAR JUST ENDED, BUT MAY
NOT EXCEED NET INCOME OF THE FUND FOR THE FISCAL YEAR JUST ENDED PLUS
THE BALANCE IN THIS FUND.
8. (A) THE EARNINGS RESERVE ACCOUNT IS ESTABLISHED AS A SEPARATE
ACCOUNT IN THE FUND. INCOME FROM THE FUND SHALL BE DEPOSITED BY THE
BOARD INTO THE ACCOUNT AS SOON AS IT IS RECEIVED. MONEY IN THE ACCOUNT
SHALL BE INVESTED IN INVESTMENTS AUTHORIZED UNDER SUBDIVISION SIX OF
THIS SECTION.
(B) AT THE END OF EACH FISCAL YEAR, THE BOARD SHALL TRANSFER FROM THE
EARNINGS RESERVE ACCOUNT TO THE DIVIDEND FUND ESTABLISHED UNDER THIS
SECTION, FIFTY PERCENT OF THE INCOME AVAILABLE FOR DISTRIBUTION.
(C) AFTER THE TRANSFER UNDER PARAGRAPH (B) OF THIS SUBDIVISION, THE
BOARD SHALL TRANSFER FROM THE EARNINGS RESERVE ACCOUNT TO THE PRINCIPAL
OF THE FUND AN AMOUNT SUFFICIENT TO OFFSET THE EFFECT OF INFLATION ON
PRINCIPAL OF THE FUND DURING THAT FISCAL YEAR. THE BOARD SHALL CALCULATE
THE AMOUNT TO TRANSFER TO THE PRINCIPAL UNDER THIS SUBDIVISION BY:
(I) COMPUTING THE AVERAGE OF THE MONTHLY UNITED STATES CONSUMER PRICE
INDEX FOR ALL URBAN CONSUMERS FOR EACH OF THE TWO PREVIOUS CALENDAR
YEARS;
A. 9112 4
(II) COMPUTING THE PERCENTAGE CHANGE BETWEEN THE FIRST AND SECOND
CALENDAR YEAR AVERAGE; AND
(III) APPLYING THAT RATE TO THE VALUE OF THE PRINCIPAL OF THE FUND ON
THE LAST DAY OF THE FISCAL YEAR JUST ENDED.
9. THE BOARD SHALL DETERMINE AND DISTRIBUTE SUCH AMOUNTS TO EACH
TAXPAYER OF THE STATE.
10. THE RESOURCES OF THE BOARD OR THE FUND MAY NOT BE USED TO FINANCE
OR INFLUENCE POLITICAL ACTIVITIES.
11. MONIES OF THE FUND, WHEN ALLOCATED, SHALL BE AVAILABLE TO THE
DEPARTMENT OF TAXATION AND FINANCE FOR DISTRIBUTION TO TAXPAYERS OF THE
STATE.
12. MONIES SHALL BE PAYABLE FROM THE FUND ON THE AUDIT AND WARRANT OF
THE COMPTROLLER ON VOUCHERS APPROVED AND CERTIFIED BY BOARD, IN CONJUNC-
TION WITH THE COMMISSIONER OF TAXATION AND FINANCE.
§ 3. This act shall take effect on the one hundred eightieth day after
it shall have become a law. Effective immediately, the addition, amend-
ment and/or repeal of any rule or regulation necessary for the implemen-
tation of this act on its effective date are authorized to be made and
completed on or before such effective date.