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SECTION 209-B
Metropolitan transportation business tax surcharge
Tax (TAX) CHAPTER 60, ARTICLE 9-A
§ 209-B. Metropolitan transportation business tax surcharge. 1. (a)
For the privilege of exercising its corporate franchise, or of doing
business, or of employing capital, or of owning or leasing property in a
corporate or organized capacity, or of maintaining an office, or of
deriving receipts from activity in the metropolitan commuter
transportation district, for all or any part of its taxable year, there
is hereby imposed on every corporation, other than a New York S
corporation, subject to tax under section two hundred nine of this
article, or any receiver, referee, trustee, assignee or other fiduciary,
or any officer or agent appointed by any court, who conducts the
business of any such corporation, a tax surcharge, in addition to the
tax imposed under section two hundred nine of this article, to be
computed at the rate of seventeen percent of the tax imposed under such
section for such taxable years or any part of such taxable years ending
on or after December thirty-first, nineteen hundred eighty-three and
before January first, two thousand fifteen after the deduction of any
credits otherwise allowable under this article, at the rate of
twenty-five and six-tenths percent of the tax imposed under such section
for taxable years beginning on or after January first, two thousand
fifteen and before January first, two thousand sixteen before the
deduction of any credits otherwise allowable under this article, and at
the rate determined by the commissioner pursuant to paragraph (f) of
this subdivision of the tax imposed under such section, for taxable
years beginning on or after January first, two thousand sixteen before
the deduction of any credits otherwise allowable under this article.
However, such rate of tax surcharge shall be applied only to that
portion of the tax imposed under section two hundred nine of this
article before the deduction of any credits otherwise allowable under
this article which is attributable to the taxpayer's business activity
carried on within the metropolitan commuter transportation district; and
provided, further, the surcharge computed on a combined report shall
include a surcharge on the fixed dollar minimum tax for each member of
the combined group subject to the surcharge under this subdivision.

(b) A corporation is deriving receipts from activity in the
metropolitan commuter transportation district if it has receipts within
the metropolitan commuter transportation district 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 apportionment
rules set forth in section two hundred ten-A of this article, and the
term "receipts within the metropolitan commuter transportation district"
means the receipts included in the numerator of the apportionment factor
determined under subdivision two of this section. For purposes of 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 metropolitan commuter
transportation district if (i) it has issued credit cards to one
thousand or more customers who have a mailing address within the
metropolitan commuter transportation district as of the last day of its
taxable year, (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 metropolitan commuter transportation
district to whom the corporation remitted payments for credit card
transactions during the taxable year, or (iii) 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. As used in this
paragraph, the term "credit card" includes bank, credit, travel and
entertainment cards.

(d)(i) A corporation with less than one million dollars but at least
ten thousand dollars of receipts within the metropolitan commuter
transportation district in a taxable year that is part of a unitary
group that meets the ownership test under section two hundred ten-C of
this article is deriving receipts from activity in the metropolitan
commuter transportation district if the receipts within the metropolitan
commuter transportation district of the members of the unitary group
that have at least ten thousand dollars of receipts within the
metropolitan commuter transportation district in the aggregate meet the
threshold set forth in paragraph (b) of this subdivision.

(ii) 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),
and is part of a unitary group that meets the ownership test under
section two hundred ten-C of this article is doing business in the
metropolitan commuter transportation district if the number of
customers, locations, or customers and locations, within the
metropolitan commuter transportation district of the members of the
unitary group that have at least ten customers, locations, or customers
and locations, within the metropolitan commuter transportation district
in the aggregate meets any of the thresholds set forth in paragraph (c)
of this subdivision.

(iii) For purposes of this paragraph, any corporation described in
paragraph (c) of subdivision two of section two hundred ten-C of this
article shall not be considered.

(e) At the end of each year, the commissioner shall review the
cumulative 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 the January first, two thousand fifteen or since the date
that the thresholds were last adjusted under this subdivision. The
thresholds shall be adjusted to reflect that 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) The commissioner shall determine the rate of tax for taxable years
beginning on or after January first, two thousand sixteen by adjusting
the rate for taxable years beginning on or after January first, two
thousand fifteen and before January first, two thousand sixteen as
necessary to ensure that the receipts attributable to such surcharge, as
impacted by the chapter of the laws of two thousand fourteen which added
this paragraph, will meet and not exceed the financial projections for
state fiscal year two thousand sixteen-two thousand seventeen, as
reflected in state fiscal year two thousand fifteen-two thousand sixteen
enacted budget. The commissioner shall annually determine the rate
thereafter using the financial projections for the state fiscal year
that commences in the year for which the rate is to be set as reflected
in the enacted budget for the fiscal year commencing on the previous
April first.

2. The portion of the taxpayer's business activity carried on within
the metropolitan commuter transportation district shall be determined by
multiplying the tax imposed under section two hundred nine of this
article before the deduction of any credits otherwise allowable under
this article by a percentage to be determined as follows:

(a) ascertaining the percentage which the average value of the
taxpayer's real and tangible personal property, whether owned or rented
to it, within the metropolitan commuter transportation district 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, within the state during such period; provided that 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 taxable year); provided, however, that the
taxpayer may make a one-time, revocable election 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 two hundred eleven 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;

(b) ascertaining the percentage of the taxpayer's receipts within the
metropolitan commuter transportation district pursuant to the method
prescribed in section two hundred ten-A of this article, except that

(i) the numerator of the apportionment fraction under such section two
hundred ten-A shall be the denominator of the apportionment fraction
under this paragraph,

(ii) the numerator of the apportionment fraction under this paragraph
shall be determined by applying the rules in such section two hundred
ten-A relating to the numerator of the apportionment fraction as if
those rules referenced the metropolitan commuter transportation district
rather than this state,

(iii) to the extent that a provision in such section two hundred ten-A
provides that eight percent of the receipts specified in that provision
should be included in the numerator of the apportionment fraction,
ninety percent of such eight percent amount shall be considered within
the metropolitan commuter transportation district and one hundred
percent of such eight percent amount shall be considered to be within
the state, and

(iv) to the extent that a provision in such section two hundred ten-A
of this article provides that the receipts specified in that provision
shall not be included in the numerator of the apportionment fraction
under such section two hundred ten-A, such receipts shall not be
included in determining the portion of the taxpayer's business activity
carried on within the metropolitan commuter transportation district;

(c) ascertaining the percentage of the total wages, salaries and other
personal service compensation, similarly computed, during such period,
of employees within the metropolitan commuter transportation district,
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 the state, except general
executive officers; and

(d) adding together the percentages so determined and dividing the
result by the number of percentages.

3. A corporation shall not be deemed to be doing business, employing
capital, owning or leasing property, or maintaining an office, or
deriving receipts from activity in the metropolitan commuter
transportation district, for the purposes of this section, by reason of
(a) the maintenance of cash balances with banks or trust companies in
the metropolitan commuter transportation district, or (b) the ownership
of shares of stock or securities kept in the metropolitan commuter
transportation district, 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 metropolitan commuter
transportation district 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 metropolitan commuter
transportation district, and does not employ capital or own or lease
property in the metropolitan commuter transportation district, or (e)
the keeping of books or records of a corporation in the metropolitan
commuter transportation district 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 metropolitan commuter transportation district, or (f) any
combination of the foregoing activities.

4. Notwithstanding any contrary provisions of state or local law, the
tax surcharge imposed under this section shall not be allowed as a
deduction in the computation of any tax imposed under this chapter.
Furthermore, the credits otherwise allowable under this article shall
not be allowed against the tax surcharge imposed by this section.

5. The provisions concerning reports under sections two hundred ten-C
and two hundred eleven shall be applicable to this section, except that
for purposes of an automatic extension for six months for filing a
report covering the tax surcharge imposed by this section, such
automatic extension shall be allowed only if a taxpayer files with the
commissioner an application for extension in such form as said
commissioner may prescribe by regulation and pays on or before the date
of such filing in addition to any other amounts required under this
article, either ninety percent of the entire tax surcharge required to
be paid under this section for the applicable period, or not less than
the tax surcharge shown on the taxpayer's return for the preceding
taxable year, if such preceding taxable year was a taxable year of
twelve months; provided, however, that in no event shall such amount be
less than the product of the following three amounts: (1) the tax
surcharge rate in effect for the taxable year pursuant to subdivision
one of this section, (2) the fixed dollar minimum applicable to such
taxpayer as determined under paragraph (d) of subdivision one of section
two hundred ten of this chapter for the taxable year, and (3) the
percentage determined under subdivision two of this section for the
preceding taxable year, unless the taxpayer was not subject to the tax
surcharge imposed pursuant to this section with respect to such year, in
which case such percentage shall be deemed to be one hundred percent.
The tax surcharge imposed by this section shall be payable to the
commissioner in full at the time the report is required to be filed, and
such tax surcharge or the balance thereof, imposed on any taxpayer which
ceases to exercise its franchise or be subject to the tax surcharge
imposed by this section shall be payable to the commissioner at the time
the report is required to be filed, provided such tax surcharge of a
domestic corporation which continues to possess its franchise shall be
subject to adjustment as the circumstances may require; all other tax
surcharges of any such taxpayer, which pursuant to the foregoing
provisions of this section would otherwise be payable subsequent to the
time such report is required to be filed, shall nevertheless be payable
at such time. All of the provisions of this article presently applicable
are applicable to the tax surcharge imposed by this section.

6. The term metropolitan commuter transportation district as used in
this section shall be defined pursuant to section twelve hundred
sixty-two of the public authorities law.