1454 - Allocation.

§ 1454. Allocation. (a) In general. If a taxpayer's entire net income,  alternative  entire  net  income,  or  taxable  assets  are derived from  business carried on within and without the state,  the  taxpayer  shall,  for  purposes  of  computing  allocation  percentages,  compute payroll,  receipts, and deposits percentages  in  accordance  with  the  following  rules:    (1)  The  taxpayer shall ascertain the percentage which eighty percent  of the total wages, salaries and  other  personal  service  compensation  during  the  taxable  year  of employees within the state, except wages,  salaries and other personal service compensation  of  general  executive  officers,  bears to the total wages, salaries and other personal service  compensation during the taxable year of  all  the  taxpayer's  employees  within  and without the state, except wages, salaries and other personal  service compensation of general executive officers.    (2) (A) The taxpayer shall ascertain the percentage which the receipts  of the taxpayer arising during the taxable year from:    (i) loans (including a taxpayer's portion  of  a  participation  in  a  loan)  and  financing  leases  within  the state, and all other business  receipts earned within the state, bear to    (ii) the total amount of the taxpayer's receipts from loans (including  a taxpayer's portion of a participation in a loan) and financing  leases  and all other business receipts within and without the state.    (B)  All interest from loans and financing leases is located where the  greater portion of income producing activity  related  to  the  loan  or  financing lease occurred; provided, however:    (i)  In the case of a taxpayer described in paragraph one, two, three,  four, five or seven  of  subsection  (a)  of  section  fourteen  hundred  fifty-two  of this article, a loan or financing lease attributed by such  taxpayer to a branch without the state shall be presumed to be  properly  so  attributed provided that such presumption may be rebutted if the tax  commission demonstrates that the greater  portion  of  income  producing  activity  related  to  the loan or financing lease did not occur at such  branch. Where such presumption has been rebutted, the loan or  financing  lease  shall  be  presumed to be within this state if the taxpayer had a  branch within this state at the time the loan  or  financing  lease  was  made.  The taxpayer may rebut such presumption by demonstrating that the  greater portion of income producing activity  related  to  the  loan  or  financing lease did not occur within the state. In the case of a loan or  financing  lease  which  is recorded on the books of a place without the  state which is not a branch, it  shall  be  presumed  that  the  greater  portion  of  income producing activity related to such loan or financing  lease occurred within this state if the taxpayer  had  a  branch  within  this  state  at  the  time  the  loan  or  financing lease was made. The  taxpayer may rebut such presumption by demonstrating  that  the  greater  portion  of  income  producing activity related to the loan or financing  lease did not occur within this state.    (ii) In the case of a taxpayer described in paragraph six or  nine  of  subsection  (a) of section fourteen hundred fifty-two of this article, a  loan or financing lease attributed by  such  taxpayer  to  a  bona  fide  office  without the state shall be presumed to be properly so attributed  provided that such presumption may be rebutted  if  the  tax  commission  demonstrates  that  the  greater  portion  of  income producing activity  related to the loan or financing lease did not occur without this state.    (C) Receipts from  lease  transactions  other  than  financing  leases  referred  to  in subparagraph (B) are located where the property subject  to the lease is located.    (D) (i) Interest, and fees and penalties in the  nature  of  interest,  from  bank, credit, travel and entertainment card receivables are earnedwithin the state if the mailing  address  of  the  card  holder  in  the  records of the taxpayer is in the state;    (ii)  Service  charges  and fees from such cards are earned within the  state if the mailing address of the card holder in the  records  of  the  taxpayer is in the state; and    (iii)  Receipts from merchant discounts are earned within the state if  the merchant is located within the state.    (E) The portion of total net  gains  and  other  income  from  trading  activities  (including  but not limited to foreign exchange, options and  financial futures), and from investment activities which  is  attributed  within  the  state  shall  be  ascertained by multiplying such total net  gains and other income by a fraction  the  numerator  of  which  is  the  average  value  of  trading assets and investment assets attributable to  this state and the denominator of which is  the  average  value  of  all  trading  and  investment  assets. A trading asset or investment asset is  attributable to this state if the greater portion  of  income  producing  activity  related  to  the  trading  asset  or investment asset occurred  within the state.    (F) Fees or charges from the issuance of letters of credit,  travelers  checks  and  money orders are earned within the state if such letters of  credit, travelers checks or money orders are issued within the state.    (G) Rules for receipts from certain services to investment  companies.  (1)  For taxable years beginning on or after January first, two thousand  one, the portion of receipts received from an investment company arising  from the sale of management, administration or distribution services  to  such investment company determined in accordance with clause two of this  subparagraph shall be deemed to arise from services performed within the  state (such portion referred to herein as the New York portion).    (2) The New York portion shall be the product of (i) the total of such  receipts  from  the  sale  of  such  services  and  (ii) a fraction. The  numerator of that fraction is the sum of  the  monthly  percentages  (as  defined  hereinafter)  determined  for  each  month  of  the  investment  company's taxable year for federal income  tax  purposes  which  taxable  year  ends  within  the  taxable year of the taxpayer (but excluding any  month during which the investment company had  no  outstanding  shares).  The monthly percentage for each such month is determined by dividing (i)  the  number  of  shares in the investment company which are owned on the  last day of the month by shareholders which are domiciled in  the  state  by (ii) the total number of shares in the investment company outstanding  on  that  date.  The  denominator  of the fraction is the number of such  monthly percentages.    (3)(i) For purposes of this subparagraph the term "domicile",  in  the  case  of  an  individual  shall  have  the  meaning ascribed to it under  article twenty-two of this chapter; an estate or trust is  domiciled  in  the  state  if  it is a resident estate or trust as defined in paragraph  three of subsection (b) of section six hundred five of this  chapter;  a  business  entity is domiciled in the state if the location of the actual  seat of management or control is in the state. It shall be presumed that  the domicile of a shareholder, with respect to any month, is his, her or  its mailing address on the records of the investment company as  of  the  last day of such month.    (ii)  For purposes of this subparagraph, the term "investment company"  shall mean a regulated investment company, as defined in section 851  of  the internal revenue code, and a partnership to which section 7704(a) of  the  internal  revenue  code applies (by virtue of section 7704(c)(3) of  such code) and which meets the requirements of section  851(b)  of  such  code.  The  preceding  sentence shall be applied to the taxable year for  federal income tax purposes of the business entity which is asserted  toconstitute  an  investment company which ends within the taxable year of  the taxpayer.    (iii)  For  purposes  of this subparagraph, the term "receipts from an  investment  company"  includes  amounts  received   directly   from   an  investment  company as well as amounts received from the shareholders in  such investment company, in their capacity as such.    (iv) For purposes of this subparagraph, the term "management services"  means the rendering of  investment  advice  to  an  investment  company,  making  determinations  as to when sales and purchases of securities are  to be made on behalf  of  an  investment  company,  or  the  selling  or  purchasing  of  securities constituting assets of an investment company,  and related activities, but only where such activity or  activities  are  performed  pursuant  to  a  contract with the investment company entered  into pursuant to section 15(a) of the federal investment company act  of  nineteen hundred forty, as amended.    (v)   For  purposes  of  this  subparagraph,  the  term  "distribution  services" means the services of advertising, servicing investor accounts  (including redemptions),  marketing  shares  or  selling  shares  of  an  investment  company, but, in the case of advertising, servicing investor  accounts (including redemptions) or marketing shares,  only  where  such  service is performed by a person who is (or was, in the case of a closed  end  company) also engaged in the service of selling such shares. In the  case of an open end company, such service  of  selling  shares  must  be  performed  pursuant to a contract entered into pursuant to section 15(b)  of the federal investment company act  of  nineteen  hundred  forty,  as  amended.    (vi)  For  purposes  of  this  subparagraph,  the term "administration  services" includes clerical, accounting, bookkeeping,  data  processing,  internal  auditing,  legal  and tax services performed for an investment  company but only if the provider of such service or services during  the  taxable  year  in  which  such  service  or services are sold also sells  management or distribution services, as  defined  hereinabove,  to  such  investment company.    (H)  All receipts from the performance of services not described above  are earned within the state if the services are performed in the  state.  When  a  service  is  performed  both  within and without the state, the  receipts shall be allocated within and without the state  in  accordance  with rules and regulations of the tax commission.    (I)  All other receipts not described in subparagraphs (B) through (H)  of this paragraph shall be attributable within and without the state  in  accordance  with  rules  and  regulations  issued by the commissioner of  taxation and finance.    (3) The taxpayer shall ascertain  the  percentage  which  the  average  value  of  deposits  maintained  at branches within the state during the  taxable year, bears to the average value of all the taxpayer's  deposits  maintained  at  branches within and without the state during the taxable  year.    (4) Each percentage computed pursuant  to  this  subsection  shall  be  computed  on  a  cash  or  accrual  basis  according  to  the  method of  accounting used for the taxable  year.  The  receipts  percentage  shall  include  only  receipts  which  are  included  in alternative entire net  income for the taxable year. The deposits and payroll percentages  shall  include  only deposits and payroll the expenses of which are included in  the computation of alternative entire net income for the taxable year.    (5) For purposes of this section:    (A) The term "bona fide office" means an office at which the  taxpayer  carries  on its business in a regular and systematic manner and which is  continuously maintained, occupied and used by employees of the taxpayer.(B) The term "branch" means a bona fide office which is  used  by  the  taxpayer  on  a  regular  and  systematic  basis  to  (i)  approve loans  (regardless of whether the approval of certain classes of loans requires  review or final approval by another office of the taxpayer), (ii) accept  loan  repayments,  (iii)  disburse  funds,  and (iv) conduct one or more  other functions of a banking business.    (6) If it shall appear to  the  tax  commission  that  the  allocation  percentage  determined  in  subsection  (b), (c), or (d) of this section  does not properly reflect the activity, business, income or assets of  a  taxpayer within the state, the tax commission shall be authorized in its  discretion  to  adjust  it  by  (1) excluding one or more of the factors  therein, (2) including one or more  other  factors,  or  (3)  any  other  similar  or  different  method  calculated  to  effect a fair and proper  allocation of the income or assets reasonably attributable to the state.    (7) The tax commission from time to time shall publish all rulings  of  general   public  interest  with  respect  to  any  application  of  the  provisions of paragraph six of this subsection.    (b) Allocation of entire net income.    (1) If a taxpayer's entire net income is derived from business carried  on both within and without the  state,  the  portion  thereof  which  is  derived from business carried on within the state shall be determined by  multiplying  its  entire  net income by the income allocation percentage  determined as follows: add the percentages ascertained under  paragraphs  one,  two and three of subsection (a) of this section, plus, in the case  of a taxpayer other  than  a  New  York  S  corporation,  an  additional  percentage  equal to the receipts percentage ascertained under paragraph  two of such  subsection  and  an  additional  percentage  equal  to  the  deposits   percentage   ascertained   under   paragraph  three  of  such  subsection, and divide the result by the number of percentages so  added  together.    1-a.   Notwithstanding   the  provisions  of  paragraph  one  of  this  subsection, each banking corporation  described  in  paragraph  nine  of  subsection  (a)  of  section  fourteen hundred fifty-two of this article  subject to the tax imposed by this article that  substantially  provides  management,  administrative  or  distribution  services to an investment  company, as such terms are defined in subparagraph (G) of paragraph  two  of  subsection  (a)  of this section, shall determine the portion of its  entire net income derived from business carried on within the  state  by  multiplying  such  income by an income allocation percentage obtained as  follows:    (A) For taxable  years  beginning  on  or  after  January  first,  two  thousand six and before the first day of January, two thousand seven, by  adding the following percentages:    (i)  the  product  of  seventeen percent and the percentage determined  under paragraph one of subsection (a) of this section,    (ii) the product of fifty percent and the percentage determined  under  paragraph two of subsection (a) of this section, and    (iii)   the   product  of  thirty-three  percent  and  the  percentage  determined under paragraph three of subsection (a) of this section.    (B) For taxable  years  beginning  on  or  after  January  first,  two  thousand  seven and before the first day of January, two thousand eight,  by adding the following percentages:    (i) the product of ten percent and  the  percentage  determined  under  paragraph one of subsection (a) of this section,    (ii)  the  product  of  seventy  percent and the percentage determined  under paragraph two of subsection (a) of this section, and    (iii) the product of twenty  percent  and  the  percentage  determined  under paragraph three of subsection (a) of this section.(C)  For  taxable  years  beginning  on  or  after  January first, two  thousand eight, by the percentage ascertained  under  paragraph  two  of  subsection (a) of this section.    (2)  (A) In lieu of the modification provided for in subsection (f) of  section fourteen hundred fifty-three of this  article,  (relating  to  a  modification  for  the  adjusted eligible net income of an international  banking facility), a taxpayer may, in the manner prescribed by  the  tax  commission,  elect  to  modify  on an annual basis its income allocation  percentage in the manner described in clauses (i), (ii) and (iii) below:    (i) wages, salaries and other personal service  compensation  properly  attributable  to  the  production  of  eligible gross income of the tax-  payer's international banking facility shall  not  be  included  in  the  computation  of  wages, salaries and other personal service compensation  of employees within the state,    (ii) receipts properly attributable  to  the  production  of  eligible  gross  income of the taxpayer's international banking facility shall not  be included in the computation of receipts within the state, and    (iii) deposits from foreign persons which are properly attributable to  the production of eligible gross income of the taxpayer's  international  banking  facility  shall  not be included in the computation of deposits  maintained at branches within the state.    (B) For purposes of this paragraph, the term "eligible  gross  income"  refers  to  such  term  as set out in subsection (f) of section fourteen  hundred fifty-three of  this  article  except  that  the  term  "foreign  person"  as  defined in paragraph eight of such subsection (f) shall not  include a  foreign  branch  of  the  taxpayer  and  in  no  event  shall  transactions  between  the taxpayer's international banking facility and  its foreign branches be considered.    (c) Allocation of alternative  entire  net  income.  If  a  taxpayer's  alternative  entire  net income is derived from business carried on both  within and without the state, the portion thereof which is derived  from  business  carried on within the state shall be determined by multiplying  its alternative entire net income by the alternative entire  net  income  allocation percentage determined as follows:    (1) Recompute the payroll percentage under paragraph one of subsection  (a)  of  this section without giving consideration to the phrase "eighty  percent of," add to the resulting percentage the percentages ascertained  under paragraphs two and three of such subsection, and divide the result  by the number of percentages so added together.    (2) When an election has  been  made  pursuant  to  paragraph  two  of  subsection  (b)  of  this  section  (relating  to  international banking  facilities) the taxpayer shall make the modifications described in  such  paragraph  for  purposes of its alternative entire net income allocation  percentage.    (3) For taxable  years  beginning  on  or  after  January  first,  two  thousand  six,  each  banking corporation described in paragraph nine of  subsection (a) of section fourteen hundred  fifty-two  of  this  article  subject  to  the tax imposed by this article that substantially provides  management, administrative or distribution  services  to  an  investment  company,  as such terms are defined in subparagraph (G) of paragraph two  of subsection (a) of this section, shall determine the  portion  of  its  alternative  entire  net  income derived from business carried on within  the state by multiplying such income by the percentage  ascertained  for  the  taxable  year  under  paragraph  one-a  of  subsection  (b) of this  section, except that in computing such percentage (A) for taxable  years  beginning  before  January  first,  two thousand eight, no consideration  shall be given to the phrase "eighty percent of"  in  paragraph  one  of  subsection  (a)  of this section, (B) for taxable years beginning beforeJanuary first, two thousand  eight,  when  an  election  has  been  made  pursuant to paragraph two of subsection (b) of this section (relating to  an   international   banking  facility)  the  taxpayer  shall  make  the  modifications  described  in  such  paragraph, and (C) for taxable years  beginning on or  after  January  first,  two  thousand  eight,  when  an  election  has  been  made pursuant to paragraph two of subsection (b) of  this  section  (relating  to  an  international  banking  facility)  the  taxpayer  shall  make  the  modifications  described  in  clause (ii) of  subparagraph (A) of such paragraph.    (d) Allocation of taxable assets. If the taxpayer's taxable assets are  derived from business carried on both within and without the state,  the  portion  thereof  which  is  derived from business carried on within the  state shall be determined by multiplying its taxable assets by an  asset  allocation  percentage  determined  in  the  same  manner  as the income  allocation percentage under subsection (b) of this  section,  determined  as  if the election provided for in paragraph two of such subsection has  been made, except that the modifications described in clauses (i),  (ii)  and (iii) of subparagraph (A) of such paragraph shall not be made.