184 - Additional franchise tax on transportation and transmission corporations and associations.

§  184.  Additional  franchise  tax on transportation and transmission  corporations and associations.-- 1. The term "corporation"  as  used  in  this  section  shall  include  an  association,  within  the  meaning of  paragraph three of subsection (a) of section seventy-seven  hundred  one  of  the internal revenue code (including a limited liability company), a  publicly traded partnership treated as a corporation for purposes of the  internal revenue code pursuant to  section  seventy-seven  hundred  four  thereof.    Every  corporation,  joint-stock  company or association formed for or  principally engaged in the conduct of canal, steamboat, ferry (except  a  ferry  company  operating between any of the boroughs of the city of New  York under a lease granted by the city), express, navigation, pipe line,  transfer,  baggage  express,  omnibus,  taxicab,  telegraph   or   local  telephone  business, or formed for or principally engaged in the conduct  of two or more of such businesses, and  every  corporation,  joint-stock  company  or association formed for or principally engaged in the conduct  of surface railroad, whether or not operated by steam, subway  railroad,  elevated  railroad,  palace  car,  sleeping  car or trucking business or  formed for or principally engaged in the conduct of  two  or  more  such  businesses and which has made an election pursuant to subdivision ten of  section  one  hundred  eighty-three  of  this  article,  and every other  corporation,  joint-stock  company  or   association   formed   for   or  principally  engaged  in the conduct of a transportation or transmission  business (other  than  a  telephone  business),  except  a  corporation,  joint-stock  company or association formed for or principally engaged in  the conduct of a surface railroad, whether or  not  operated  by  steam,  subway railroad, elevated railroad, palace car, sleeping car or trucking  business  or  formed for or principally engaged in the conduct of two or  more of such businesses and which has not made the election provided for  in subdivision ten of section one hundred eighty-three of this  article,  and,   except   a   corporation,   joint-stock  company  or  association  principally engaged in the conduct of aviation  (including  air  freight  forwarders  acting  as  principal  and  like  indirect air carriers) and  except a corporation principally engaged in providing  telecommunication  services  between  aircraft  and  dispatcher,  aircraft  and air traffic  control or ground station and ground station (or any combination of  the  foregoing),  at  least  ninety  percent  of  the  voting  stock of which  corporation is owned, directly or indirectly, by air carriers and  which  corporation's  principal  function is to fulfill the requirements of (i)  the federal aviation administration (or the successor thereto)  or  (ii)  the   international   civil  aviation  organization  (or  the  successor  thereto), relating to the existence of a  communication  system  between  aircraft  and  dispatcher,  aircraft  and  air traffic control or ground  station and ground station (or any combination of the foregoing) for the  purposes  of  air  safety  and  navigation  and  except  a  corporation,  joint-stock  company  or  association  which is liable to taxation under  article thirty-two of this chapter, for the privilege of exercising  its  corporate  franchise,  or of doing business, or of employing capital, or  of owning or leasing property in this state in a corporate or  organized  capacity,  or maintaining an office in this state, shall pay a franchise  tax which shall be equal  to  (i)  three-quarters  of  one  percent  for  taxable  years  ending  before  two  thousand  one,  provided that for a  taxable year ending in  two  thousand  the  rate  shall  be  reduced  to  three-eighths of one percent effective July first, two thousand with the  result  that  for  purposes of implementation of such change in rate the  applicable rate for such a year shall be nine-sixteenths of one percent,  and (ii) three-eighths of one percent for taxable years commencing after  two thousand, upon its gross  earnings  from  all  sources  within  thisstate;  except  that,  for  taxable years commencing on or after January  first, nineteen hundred eighty-five and ending  on  or  before  December  thirty-first,   nineteen   hundred   eighty-nine,   every   corporation,  joint-stock  company or association formed for or principally engaged in  the conduct of telephone or telegraph business shall pay a franchise tax  which shall be equal to three-tenths of one per centum  upon  its  gross  earnings  from  all  sources  within  this  state and, for taxable years  commencing on or after January first,  nineteen  hundred  ninety,  every  corporation,   joint-stock   company   or   association  formed  for  or  principally engaged in the  conduct  of  local  telephone  business,  or  telegraph business shall pay a franchise tax which shall be equal to (i)  three-quarters  of  one  percent  for  taxable  years  ending before two  thousand one, provided that for a taxable year ending  in  two  thousand  the rate shall be reduced to three-eighths of one percent effective July  first,  two thousand with the result that for purposes of implementation  of such change in rate the applicable rate for  such  a  year  shall  be  nine-sixteenths  of  one  percent, and (ii) three-eighths of one percent  for taxable years commencing after two thousand, upon its gross earnings  from  all  sources  within  this  state,  except  that  a   corporation,  joint-stock  company or association formed for or principally engaged in  the conduct of a local telephone business shall  exclude  the  following  earnings  (but  not  in any event earnings derived by such taxpayer from  the provision of carrier access services) derived by such taxpayer  from  sales  for  ultimate  consumption  of  telecommunications service to its  customers (i) thirty  percent  of  separately  charged  intra-LATA  toll  service  (which  shall  also  include  interregion regional calling plan  service) and (ii) one hundred percent of separately charged  inter-LATA,  interstate  or international telecommunications service; and except that  corporations,  joint-stock  companies  or  associations  formed  for  or  principally  engaged  in the conduct of surface railroad, whether or not  operated by steam, subway railroad, elevated  railroad,  palace  car  or  sleeping   car,   business  or  any  other  corporation  formed  for  or  principally engaged in the conduct of a railroad business,  for  taxable  years   prior   to  nineteen  hundred  ninety-seven,  and  corporations,  joint-stock companies or associations formed for or principally  engaged  in  the  conduct  of  canal,  steamboat,  ferry  (except a ferry company  operating between any of the boroughs of the city of New  York  under  a  lease  granted by the city), navigation or any corporation formed for or  principally engaged in the operation of vessels, shall pay  a  franchise  tax  which  shall  be equal to three-quarters of one per centum upon its  gross earnings from all sources within this  state,  excluding  earnings  derived from business of an interstate or foreign character; except that  for   taxable  years  beginning  in  nineteen  hundred  ninety-seven  or  thereafter, in  the  case  of  a  corporation,  joint-stock  company  or  association  which,  with  respect  to  taxable  years  beginning  after  nineteen  hundred  ninety-seven,  has  made  an  election  pursuant   to  subdivision  ten of section one hundred eighty-three of this article and  which is formed for or principally engaged in  the  conduct  of  surface  railroad,  whether  or  not operated by steam, subway railroad, elevated  railroad, palace car, sleeping car or trucking business or formed for or  principally engaged in the conduct of two or more  of  such  businesses,  such  corporation,  joint-stock  company  or  association  shall  pay  a  franchise tax which shall be equal to (i) six-tenths of one percent  for  taxable  years  ending  before  two  thousand  one,  provided that for a  taxable year ending in  two  thousand  the  rate  shall  be  reduced  to  three-eighths of one percent effective July first, two thousand with the  result  that  for  purposes of implementation of such change in rate the  applicable rate for such a year shall be thirty-nine eightieths  of  onepercent,  and  (ii)  three-eighths  of  one  percent  for  taxable years  commencing after two thousand, upon its gross earnings from all  sources  within  this  state,  provided  that  in  the  case  of  a  corporation,  joint-stock  company or association formed for or principally engaged in  the conduct of surface railroad,  whether  or  not  operated  by  steam,  subway railroad, elevated railroad, palace car or sleeping car business,  or  formed  for  or principally engaged in the conduct of two or more of  such businesses, such gross earnings shall not include earnings  derived  from business of an interstate or foreign character.    Provided, however, with respect to railroad, elevated railroad, palace  car  or  sleeping  car  business  or any other corporation formed for or  principally engaged in the conduct of a  railroad  business  and  canal,  steamboat,  ferry  (except  a ferry company operating between any of the  boroughs of the city of New York under a lease  granted  by  the  city),  navigation  or  any corporation formed for or principally engaged in the  operation of vessels where the gross earnings from  such  transportation  business   both  originating  and  terminating  within  this  state  and  traversing both this state and another state or states or country  shall  be  subject  to  the franchise tax imposed by this section (except where  such corporation, joint-stock company or association is  formed  for  or  principally  engaged  in  the  conduct  of a railroad (including surface  railroad, whether or not operated by steam, subway railroad or  elevated  railroad),  palace  car  or  sleeping  car  business  or  formed  for or  principally engaged in the conduct of two or more  of  such  businesses,  and  has  not  made  the  election provided for under subdivision ten of  section one hundred eighty-three of  this  article)  and  such  earnings  shall  be  allocated  to  this  state in the same ratio that the mileage  within the state bears to the total mileage of such business.  Provided,  further, a corporation, joint-stock company or association formed for or  principally  engaged in the transportation, transmission or distribution  of gas, electricity or steam shall not be  subject  to  tax  under  this  section or section one hundred eighty-three of this article.    The  term "local telephone business" means the provision or furnishing  of telecommunication services for hire wherein the service furnished  by  the  provider  thereof consists of carrier access service or the service  originates and terminates within the same  local  access  and  transport  area  ("LATA"),  a local access and transport area being that geographic  area as established and approved, and as so set and in existence on July  first, nineteen hundred ninety-four, pursuant  to  the  modification  of  final  judgment  in  United  States  v.  Western Electric Company (civil  action no. 82-0192) in the United States district court for the District  of Columbia or within the LATA-like Rochester non-associated independent  area.    The term "telecommunication services" shall have the meaning  ascribed  to such term in section one hundred eighty-six-e of this article.    1-a.  Where a taxpayer is a partner, member or associate of a publicly  traded partnership or an association which is subject to the tax imposed  under this section, the amount to be included in such  taxpayer's  gross  earnings  with  respect  to such partnership or association shall be the  amount received with respect to such partnership or association which is  required to be reported as  dividends  to  the  United  States  treasury  department.    2.  (a)  During  the period that the state tax on motor fuel, computed  without regard to any reimbursement allowable  under  paragraph  (d)  of  subdivision  three of section two hundred eighty-nine-c of this chapter,  exceeds  two  cents  per  gallon  the  corporations  herein  classed  as  "taxicab"  and "omnibus", other than corporations described in paragraph  (b) of this subdivision, shall be taxed under the provisions of  articlenine-a  of  the tax law and as other business corporations are taxed and  not upon their gross receipts.    (b) (1) A corporation classed as a "taxicab" or "omnibus",    (i)  which  is organized, incorporated or formed under the laws of any  other state, country or sovereignty, and    (ii) which neither owns  nor  leases  property  in  this  state  in  a  corporate or organized capacity, nor    (iii)  maintains  an  office in this state in a corporate or organized  capacity, but    (iv) which is doing business or employing capital  in  this  state  by  conducting  at  least  one  but  fewer than twelve trips into this state  during the calendar year,  shall annually pay  a  tax  equal  to  fifteen  dollars  for  each  trip  conducted  into  this  state. If the only property a corporation owns or  leases in this state is a vehicle or vehicles used to conduct trips,  it  shall   not   be  considered,  for  purposes  of  clause  (ii)  of  this  subparagraph, to be owning or leasing property in this state.    (2) The commissioner of taxation and finance may prescribe such  forms  as he may deem necessary to report such tax in a simplified manner.    (3)  For  purposes  of  this  subdivision,  a corporation classed as a  "taxicab" or "omnibus" shall be considered to be conducting a trip  into  New  York  state  when  one  of  its  vehicles enters New York state and  transports passengers to, from, or to and from a location  in  New  York  state.  A  corporation  shall  not be considered to be conducting a trip  into New York state if  its  vehicle  only  makes  incidental  stops  at  locations in the state while in transit from a location outside New York  state  to another location outside New York state. The number of trips a  corporation  conducts  into  New  York  state  shall  be  calculated  by  determining  the  number of trips each vehicle owned, leased or operated  by the corporation conducts into New York state and adding those numbers  together.    (4) Provided, however, that the provisions of this paragraph shall not  apply to any corporation which does not file its franchise tax report in  a timely manner (determined with regard to any  extension  of  time  for  filing).    3.  Any  corporation, joint-stock company or association formed for or  principally  engaged  in  the  conduct  of  subway  railroad,   elevated  railroad,  or  surface  railroad  not operated by steam, business, whose  property is leased  to  another  railroad  corporation,  shall  only  be  required under this section to pay an annual tax at the rate of four and  one-half  per  centum  upon the dividends paid during the year ending on  the thirty-first day of December in excess of four per centum  upon  the  amount of its capital stock, provided, however, that for the year ending  on  the  thirty-first  day  of December nineteen hundred seventy-six, as  described in subdivision two of section one hundred ninety-two  of  this  chapter,  the tax shall be paid upon dividends paid during the months of  July through December of such year in excess of two per centum upon  the  amount  of  its  capital stock, except that where the property leased is  operated by a receiver and the gross earnings are not included with  the  gross  earnings  of  the  lessee for the purposes of taxation under this  section, then such receiver shall be required to pay the tax upon  gross  earnings as hereinbefore provided.    4.  Allocation  of gross earnings from transportation and transmission  services.--(a) General. A  transportation  or  transmission  corporation  shall  determine its gross earnings from transportation and transmission  services within this state (except as otherwise  provided  for  in  this  subdivision)  by  multiplying its gross earnings from transportation and  transmission within and without the state by a fraction,  the  numeratorof which is the taxpayer's mileage within this state and the denominator  of  which is the taxpayer's mileage within and without this state during  the period covered by the report or reports required by this chapter.    (b)  Corporations  engaged  in the operation of vessels. A corporation  principally engaged in the operation  of  vessels  shall  determine  its  gross earnings from transportation services within this state during the  period  covered  by  the  report  or reports required by this chapter by  multiplying its gross earnings from transportation services  within  and  without  this  state  by  a percentage which represents the ratio of the  aggregate number of working days of the vessels it owns or leases in all  navigable lakes, rivers, streams and waters within this state and in New  York territorial waters to the aggregate number of working days  of  all  the vessels it owns or leases during such period.    (c)  Telephone  and  telegraph  corporations. A telephone or telegraph  corporation  shall  determine  its  gross  earnings  from   transmission  services  within  this  state during the period covered by the report or  reports required by this chapter by totaling its gross operating revenue  from transmission services performed wholly within this state  plus  the  portion  of  revenue  from  interstate  and foreign transmission service  attributable to this state during such report period.    (d) All other gross earnings, if any, shall be allocated to this state  in the manner prescribed by rules and regulations promulgated by the tax  commission.    (e) With respect to other types  of  transportation  and  transmission  corporations  or where the tax commission decides that with respect to a  certain corporation the method prescribed  above  does  not  fairly  and  equitably reflect gross earnings from all sources within this state, the  tax  commission  shall  prescribe methods of allocation or apportionment  which fairly and equitably  reflect  gross  earnings  from  all  sources  within  this  state.  Also, the tax commission may, in order to properly  reflect gross earnings, determine the report period in which any item of  gross earnings shall  be  included  without  regard  to  the  method  of  accounting employed by a corporation taxable hereunder.    7-a.  A  railroad, palace car or sleeping car corporation, navigation,  canal, ferry (except a  ferry  company  operating  between  any  of  the  boroughs  of  the  city  of New York under a lease granted by the city),  steamboat, or any other corporation formed for or principally engaged in  the operation of vessels whose only activity in this state  is  (i)  the  maintenance  of an office in this state and for the employing of capital  in this state and (ii) the use of property exclusively in interstate  or  foreign  commerce,  shall  not  be  subject  to  the tax imposed by this  section.