Bill Text: NY A03998 | 2019-2020 | General Assembly | Introduced
Bill Title: Authorizes a city having a population of one million or more to impose the city earnings tax on nonresidents; provides a real property tax credit to those nonresidents.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Introduced - Dead) 2020-01-08 - referred to ways and means [A03998 Detail]
Download: New_York-2019-A03998-Introduced.html
STATE OF NEW YORK ________________________________________________________________________ 3998 2019-2020 Regular Sessions IN ASSEMBLY January 31, 2019 ___________ Introduced by M. of A. WEPRIN -- read once and referred to the Committee on Ways and Means AN ACT to amend the general city law and the tax law, in relation to imposing the earnings tax on nonresidents; to amend the real property tax law, in relation to a real property tax credit; and to repeal chapter 5 of the laws of 1999, amending the tax law and the general city law relating to the definition of nonresident for the purpose of imposing the earnings tax on nonresidents The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. Short title. This act shall be known and may be cited as 2 the "infrastructure jobs act". 3 § 2. Chapter 5 of the laws of 1999, amending the tax law and the 4 general city law relating to the definition of nonresident for the 5 purpose of imposing the earnings tax on nonresidents, is REPEALED. 6 § 3. The general city law is amended by adding a new article 2-E to 7 read as follows: 8 ARTICLE 2-E 9 CITY EARNINGS TAX ON NONRESIDENTS 10 Section 25-m. Authorization to impose tax. 11 25-n. Administrative provisions. 12 25-o. Deposit and disposition of revenues. 13 § 25-m. Authorization to impose tax. In addition to any other taxes, 14 now authorized by law, any city having a population of one million or 15 more is hereby authorized and empowered to adopt and amend local laws 16 imposing a tax on the earnings of nonresidents of such city to be admin- 17 istered in the manner provided for in this article by the administrator 18 as defined in section one of the model local law hereinafter set forth. 19 The tax authorized by this article may be imposed only if the city 20 imposing the tax authorized by this article also imposes a tax on the 21 personal income of its residents. The rates of such tax shall be the 22 rates contained in either section two or two-A of the model local law 23 and such rates may be reduced and increased, provided that the rates EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD07397-01-9A. 3998 2 1 shall not be fixed higher than those contained in section two-A of such 2 model local law. 3 The terms of such local law shall be substantially the same as the 4 following model local law except that the appendix and the supplement to 5 the appendix in such local law may be amended for the purpose of 6 conforming it with the United States internal revenue code or other 7 federal laws relating to taxation as presently in effect or as they may 8 be amended. 9 EARNINGS TAX ON NONRESIDENTS 10 Sec. 1. Meaning of terms.--As used in this local law, the following 11 terms shall mean and include: (a) "Administrator" means the finance 12 administrator or other fiscal officer of the city charged with adminis- 13 tration of the tax on earnings of nonresidents imposed by this local 14 law, except with respect to taxes imposed for any taxable year beginning 15 on or after January first, nineteen hundred seventy-six, such term shall 16 mean state tax commission. 17 (b) "City" means the city imposing the tax. 18 (c) "Payroll period" and "employer" shall mean the same as payroll 19 period and employer as defined in subsections (b) and (d) of section 20 thirty-four hundred one of the internal revenue code, and "employee" 21 shall also include all those included as employees in subsection (c) of 22 such section of such code. 23 (d) "Wages" shall mean wages as defined in subsection (a) of section 24 thirty-four hundred one of the internal revenue code, except that (1) 25 wages shall not include payments for active service as a member of the 26 armed forces of the United States and shall not include, in the case of 27 a nonresident individual or partner of a partnership doing an insurance 28 business as a member of the New York insurance exchange described in 29 section six thousand two hundred one of the insurance law, any item of 30 income, gain, loss or deduction of such business which is such individ- 31 ual's distributive or pro rata share for federal income tax purposes or 32 which such individual is required to take into account separately for 33 federal income tax purposes and (2) wages shall include (i) the amount 34 of member or employee contributions to a retirement system or pension 35 fund picked up by the employer pursuant to subdivision f of section five 36 hundred seventeen or subdivision d of section six hundred thirteen of 37 the retirement and social security law or section 13-225.1, 13-327.1, 38 13-125.1, 13-125.2 or 13-521.1 of title thirteen of the administrative 39 code of the city of New York or subdivision nineteen of section twenty- 40 five hundred seventy-five of the education law, (ii) the amount deducted 41 or deferred from an employee's salary under a flexible benefits program 42 established pursuant to section twenty-three of the general municipal 43 law or section twelve hundred ten-a of the public authorities law, (iii) 44 the amount by which an employee's salary is reduced pursuant to the 45 provisions of subdivision b of section 12-126.1 and subdivision b of 46 section 12-126.2 of the administrative code of the city of New York, and 47 (iv) the amount of member or employee contributions to a retirement 48 system or pension fund picked up or paid by the employer for members of 49 the Manhattan and Bronx surface transportation authority pension plan 50 and treated as employer contributions in determining income tax treat- 51 ment under section 414(h) of the Internal Revenue Code. 52 (e) "Net earnings from self-employment" shall mean the same as net 53 earnings from self-employment as defined in subsection (a) of section 54 fourteen hundred two of the internal revenue code, except that the 55 deduction for wages and salaries paid or incurred for the taxable year 56 which is not allowed pursuant to section two hundred eighty-C of suchA. 3998 3 1 code shall be allowed, and except that an estate or trust shall be 2 deemed to have net earnings from self-employment determined in the same 3 manner as if it were an individual subject to the tax on self-employment 4 income imposed by section fourteen hundred one of the internal revenue 5 code diminished by (1) the amount of any deduction allowed by subsection 6 (c) of section six hundred forty-two of the internal revenue code and 7 (2) the deductions allowed by sections six hundred fifty-one and six 8 hundred sixty-one of said code to the extent that they represent 9 distributions or payments to a resident of the city. However, "trade or 10 business" as used in subsection (a) of section fourteen hundred two of 11 such code shall mean the same as trade or business as defined in 12 subsection (c) of section fourteen hundred two of such code, except that 13 paragraphs (4), (5) and (6) of such subsection shall not apply in deter- 14 mining net earnings from self-employment taxable under this local law. 15 Provided however, in the case of a nonresident individual or partner of 16 a partnership doing an insurance business described in section six thou- 17 sand two hundred one of the insurance law, any item of income, gain, 18 loss or deduction of such business which is the individual's distribu- 19 tive or pro rata share for federal income tax purposes or which the 20 individual is required to take into account separately for federal 21 income tax purposes shall not be considered to be "net earnings from 22 self-employment". 23 (f) "Taxable year" shall mean the taxpayer's taxable year for federal 24 income tax purposes. 25 (g) Resident individual.--A resident individual means an individual: 26 (1) who is domiciled in the city, unless (A) he or she maintains no 27 permanent place of abode in the city, maintains a permanent place of 28 abode elsewhere, and spends in the aggregate not more than thirty days 29 of the taxable year in the city, or (B) (i) within any period of five 30 hundred forty-eight consecutive days he or she is present in a foreign 31 country or countries for at least four hundred fifty days, and (ii) 32 during such period of five hundred forty-eight consecutive days he or 33 she is not present in the city for more than ninety days and does not 34 maintain a permanent place of abode in the city at which his or her 35 spouse (unless such spouse is legally separated) or minor children are 36 present for more than ninety days, and (iii) during any period of less 37 than twelve months, which would be treated as a separate taxable period 38 based on a change of resident status, and which period is contained 39 within such period of five hundred forty-eight consecutive days, he or 40 she is present in the city for a number of days which does not exceed an 41 amount which bears the same ratio to ninety as the number of days 42 contained in such period of less than twelve months bears to five 43 hundred forty-eight, or 44 (2) who is not domiciled in the city but maintains a permanent place 45 of abode in the city and spends in the aggregate more than one hundred 46 eighty-three days of the taxable year in the city, unless such individ- 47 ual is in active service in the armed forces of the United States. 48 (h) Nonresident individual.--A nonresident individual means an indi- 49 vidual who is not a resident. 50 (i) Resident estate or trust.--A resident estate or trust means: (1) 51 the estate of a decedent who at his or her death was domiciled in the 52 city, 53 (2) a trust, or a portion of a trust, consisting of property trans- 54 ferred by will of a decedent who at his or her death was domiciled in 55 the city, or 56 (3) a trust, or portion of a trust, consisting of the property of:A. 3998 4 1 (A) a person domiciled in the city at the time such property was 2 transferred to the trust, if such trust or portion of a trust was then 3 irrevocable, or if it was then revocable and has not subsequently become 4 irrevocable; or 5 (B) a person domiciled in the city at the time such trust, or portion 6 of a trust, became irrevocable, if it was revocable when such property 7 was transferred to the trust but has subsequently become irrevocable. 8 For the purposes of the foregoing, a trust or portion of a trust is 9 revocable if it is subject to a power, exercisable immediately or at any 10 future time, to revest title in the person whose property constitutes 11 such trust or portion of a trust, and a trust or portion of a trust 12 becomes irrevocable when the possibility that such power may be exer- 13 cised has been terminated. 14 (j) Nonresident estate or trust.--A nonresident estate or trust means 15 an estate or trust which is not a resident. 16 (k) Unless a different meaning is clearly required, any term used in 17 this local law shall have the same meaning as when used in a comparable 18 context in the laws of the United States relating to federal taxes but 19 such meaning shall be subject to the exceptions or modifications 20 prescribed in or pursuant to the laws of this state. Any reference in 21 this local law to the internal revenue code, the internal revenue code 22 of nineteen hundred eighty-six or to the laws of the United States shall 23 mean the provisions of the internal revenue code of nineteen hundred 24 eighty-six (unless a reference to the internal revenue code of nineteen 25 hundred fifty-four is clearly intended), and amendments thereto, and 26 other provisions of the laws of the United States relating to federal 27 taxes, as the same are included in this local law as an appendix and 28 supplement to the appendix or as included by reference to an appendix 29 and supplement to the appendix of a title enacted by the same local law 30 as enacts this local law. (The quotation of the aforesaid laws of the 31 United States is intended to make them a part of this local law and to 32 avoid constitutional uncertainties which might result if such laws were 33 merely incorporated by reference. The quotation of a provision of the 34 federal internal revenue code or of any other law of the United States 35 shall not necessarily mean that it is applicable to or has relevance to 36 this local law.) 37 (l) The term "partnership" shall include, unless a different meaning 38 is clearly required, a subchapter K limited liability company. The term 39 "subchapter K limited liability company" shall mean a limited liability 40 company classified as a partnership for federal income tax purposes. 41 The term "limited liability company" means a domestic limited liabil- 42 ity company or a foreign limited liability company, as defined in 43 section one hundred two of the limited liability company law, a limited 44 liability investment company formed pursuant to section five hundred 45 seven of the banking law, or a limited liability trust company formed 46 pursuant to section one hundred two-a of the banking law. 47 Sec. 2. Persons subject to tax.--(a) Imposition of tax.--A tax is 48 hereby imposed for each taxable year ending on or after July first, 49 nineteen hundred sixty-six on the wages earned, and net earnings from 50 self-employment, within the city, of every nonresident individual, 51 estate and trust which shall comprise: 52 (1) A tax at the rate of one percent on all wages. 53 (2) A tax at the rate of one percent on all net earnings from self- 54 employment. 55 (b) Exclusion.--(1) In computing the amount of wages and net earn- 56 ings from self-employment taxable under subsection (a), there shall beA. 3998 5 1 allowed an exclusion against the total of wages and net earnings from 2 self-employment in accordance with the following table: 3 Total of Wages and Net Earnings 4 From Self-Employment Exclusion Allowable 5 Not Over $10,000 $3,000 6 Over $10,000 But Not Over $20,000 $2,000 7 Over $20,000 But Not Over $30,000 $1,000 8 Over $30,000 NONE 9 (2) The exclusion allowable shall be applied pro rata against wages 10 and net earnings from self-employment. 11 (3) For taxable periods of less than one year, the exclusion allow- 12 able shall be prorated pursuant to regulations of the administrator. 13 (c) Limitation.--In no event shall a taxpayer be subject to the tax 14 under this local law in an amount greater than he or she would be 15 required to pay if he or she were a resident of the city and subject to 16 a tax on personal income of residents of the city adopted by the city 17 pursuant to authority granted by the general city law. 18 Sec. 2-A. Persons subject to tax.--(a) Imposition of tax.--(1) A tax 19 is hereby imposed for each taxable year ending on or after July first, 20 nineteen hundred sixty-six and on or before December thirty-first, nine- 21 teen hundred seventy and for each taxable year beginning after December 22 thirty-first, nineteen hundred ninety-nine, on the wages earned, and net 23 earnings from self-employment, within the city, of every nonresident 24 individual, estate and trust which shall comprise: 25 (i) A tax at the rate of one percent on all wages. 26 (ii) A tax at the rate of one percent on all net earnings from self- 27 employment. 28 (2) For each taxable year beginning on or after January first, nine- 29 teen hundred seventy-one and ending on or before December thirty-first, 30 nineteen hundred ninety-nine, a tax is hereby imposed on the wages 31 earned, and net earnings from self-employment, within the city, of every 32 nonresident individual, estate and trust which shall comprise: 33 (i) A tax at the rate of one percent on all wages. 34 (ii) A tax at the rate of one percent on all net earnings from self- 35 employment. 36 (3) For each taxable year beginning in nineteen hundred seventy and 37 ending in nineteen hundred seventy-one, two tentative taxes shall be 38 computed, the first as provided in paragraph (1) and the second as 39 provided in paragraph (2), and the tax for each such year shall be the 40 sum of that proportion of each tentative tax which the number of days in 41 nineteen hundred seventy and the number of days in nineteen hundred 42 seventy-one, respectively, bears to the number of days in the entire 43 taxable year. 44 (4) For each taxable year beginning in nineteen hundred ninety-nine 45 and ending in two thousand, two tentative taxes shall be computed, the 46 first as provided in paragraph (2) and the second as provided in para- 47 graph (1), and the tax for each such year shall be the sum of that 48 proportion of each tentative tax which the number of days in nineteen 49 hundred ninety-nine and the number of days in two thousand, respective- 50 ly, bears to the number of days in the entire taxable year. 51 (b) Exclusion.--(1) In computing the amount of wages and net earnings 52 from self-employment taxable under subsection (a), there shall be 53 allowed an exclusion against the total of wages and net earnings from 54 self-employment in accordance with the following table: 55 Total of Wages and Net Earnings 56 From Self-Employment Exclusion AllowableA. 3998 6 1 Not Over $10,000 $3,000 2 Over $10,000 But Not Over $20,000 $2,000 3 Over $20,000 But Not Over $30,000 $1,000 4 Over $30,000 NONE 5 (2) The exclusion allowable shall be applied pro rata against wages 6 and net earnings from self-employment. 7 (3) For taxable periods of less than one year, the exclusion allowable 8 shall be prorated pursuant to regulations of the administrator. 9 (c) Limitation.--In no event shall a taxpayer be subject to the tax 10 under this local law in an amount greater than he or she would be 11 required to pay if he or she were a resident of the city and subject to 12 a tax on personal income of residents of the city adopted by the city 13 pursuant to authority granted by the general city law or the tax law. 14 Sec. 3. Taxable years to which tax imposed by this local law applies; 15 tax for taxable years beginning prior to and ending after July first, 16 nineteen hundred sixty-six.--(a) General.-- The tax imposed by this 17 local law is imposed for each taxable year beginning with taxable years 18 ending on or after July first, nineteen hundred sixty-six. 19 (b) Alternate methods for determining tax for taxable years ending on 20 or after July first, nineteen hundred sixty-six.-- (1) The tax for any 21 taxable year ending on or after July first, nineteen hundred sixty-six 22 and on or before June thirtieth, nineteen hundred sixty-seven, shall be 23 the same part of the tax which would have been imposed had this local 24 law been in effect for the entire taxable year as the number of months 25 (or major portions thereof) of the taxable year occurring after July 26 first, nineteen hundred sixty-six is of the number of months (or major 27 portions thereof) in the taxable year. 28 (2) (i) In lieu of the method of computation of tax prescribed in 29 paragraph (1), if the taxpayer maintains adequate records for any taxa- 30 ble year ending on or after July first, nineteen hundred sixty-six and 31 on or before June thirtieth, nineteen hundred sixty-seven, the tax for 32 such taxable year, at the election of the taxpayer, may be computed on 33 the basis of the wages which the taxpayer would have reported had he or 34 she filed a federal income tax return for a taxable year beginning July 35 first, nineteen hundred sixty-six and ending with the close of such 36 taxable year ending on or before June thirtieth, nineteen hundred 37 sixty-seven, and the net earnings from self-employment which the taxpay- 38 er would have reported for federal income tax purposes had he or she 39 filed a self-employment tax return for a taxable year beginning July 40 first, nineteen hundred sixty-six and ending with the close of such 41 taxable year ending on or before June thirtieth, nineteen hundred 42 sixty-seven. 43 (ii) For purposes of this paragraph, the exclusions allowable under 44 section two shall be reduced by a fraction the numerator of which is the 45 number of months (or major portions thereof) of the taxable year occur- 46 ring before July first, nineteen hundred sixty-six and the denominator 47 of which is the number of months (or major portions thereof) in the 48 taxable year. Except as provided in this paragraph, the tax for such 49 period ending on or before June thirtieth, nineteen hundred sixty-seven, 50 shall be computed in accordance with the other provisions of this local 51 law. 52 Sec. 4. Allocation to the city.--(a) General.-- If net earnings from 53 self-employment are derived from services performed, or from sources, 54 within and without the city, there shall be allocated to the city a fair 55 and equitable portion of such earnings.A. 3998 7 1 (b) Allocation of net earnings from self-employment.--(1) Place of 2 business.-- If a taxpayer has no regular place of business outside the 3 city all of his or her net earnings from self-employment shall be allo- 4 cated to the city. 5 (2) Allocation by taxpayer's books.-- The portion of net earnings 6 from self-employment allocable to the city may be determined from the 7 books and records of a taxpayer's trade or business, if the methods used 8 in keeping such books and the accuracy thereof are approved by the 9 administrator as fairly and equitably reflecting net earnings from self- 10 employment within the city. 11 (3) Allocation by formula.-- If paragraph (2) does not apply to the 12 taxpayer, the portion of net earnings from self-employment allocable to 13 the city shall be determined by multiplying (A) net earnings from self- 14 employment within and without the city, by (B) the average of the 15 following three percentages: 16 (i) Property percentage. The percentage computed by dividing (A) the 17 average of the value, at the beginning and end of the taxable year, of 18 real and tangible personal property connected with the net earnings from 19 self-employment and located within the city, by (B) the average of the 20 value, at the beginning and end of the taxable year, of all real and 21 tangible personal property connected with the net earnings from self-em- 22 ployment and located both within and without the city. For this 23 purpose, real property shall include real property, whether owned or 24 rented. 25 (ii) Payroll percentage. The percentage computed by dividing (A) the 26 total wages, salaries and other personal service compensation paid or 27 incurred during the taxable year to employees in connection with the net 28 earnings from self-employment derived from a trade or business carried 29 on within the city, by (B) the total of all wages, salaries and other 30 personal service compensation paid or incurred during the taxable year 31 to employees in connection with the net earnings from self-employment 32 derived from a trade or business carried on both within and without the 33 city. 34 (iii) Gross income percentage. The percentage computed by dividing 35 (A) the gross sales or charges for services performed by or through an 36 agency located within the city, by (B) the total of all gross sales or 37 charges for services performed within and without the city. The sales 38 or charges to be allocated to the city shall include all sales negoti- 39 ated or consummated, and charges for services performed, by an employee, 40 agent, agency or independent contractor chiefly situated at, connected 41 by contract or otherwise with, or sent out from, offices or other agen- 42 cies of the trade or business from which a taxpayer is deriving net 43 earnings from self-employment, situated within the city. 44 (c) Other allocation methods.-- The portion of net earnings from self- 45 employment allocable to the city shall be determined in accordance with 46 rules and regulations of the administrator if it shall appear to the 47 administrator that the net earnings from self-employment are not fairly 48 and equitably reflected under the provisions of subsection (b). 49 (d) Special rules for real estate.-- Income and deductions from the 50 rental of real property and gain and loss from the sale, exchange or 51 other disposition of real property, shall not be subject to allocation 52 under subsection (b) or (c), but shall be considered as entirely derived 53 from or connected with the place in which such property is located. 54 Sec. 5. Accounting periods and methods.--(a) Accounting periods.-- A 55 taxpayer's taxable year under this local law shall be the same as his or 56 her taxable year for federal income tax purposes.A. 3998 8 1 (b) Change of accounting periods.--If a taxpayer's taxable year is 2 changed for federal income tax purposes, his or her taxable year for 3 purposes of this local law shall be similarly changed. If a taxable 4 period of less than twelve months results from a change of taxable year, 5 the exclusion allowable under section two or two-A of this local law 6 shall be prorated under regulations of the administrator. 7 (c) Accounting methods.--A taxpayer's method of accounting under this 8 section shall be the same as his or her method of accounting for federal 9 income tax purposes. In the absence of any method of accounting for 10 federal income tax purposes, net earnings from self-employment within 11 the city shall be computed under such method as in the opinion of the 12 administrator clearly reflects net earnings from self-employment within 13 the city. 14 (d) Change of accounting methods.--(1) If a taxpayer's method of 15 accounting is changed for federal income tax purposes, his or her method 16 of accounting for purposes of this local law shall be similarly changed. 17 (2) If a taxpayer's method of accounting is changed, other than from 18 an accrual to an installment method, any additional tax which results 19 from adjustments determined to be necessary solely by reason of the 20 change shall not be greater than if such adjustments were ratably allo- 21 cated and included for the taxable year of the change and the preceding 22 taxable years, beginning after July first, nineteen hundred sixty-six, 23 not in excess of two, during which the taxpayer used the method of 24 accounting from which the change is made. 25 (3) If a taxpayer's method of accounting is changed from an accrual 26 to an installment method, any additional tax for the year of such change 27 of method and for any subsequent year which is attributable to the 28 receipt of installment payments properly accrued in a prior year, shall 29 be reduced by the portion of tax for any prior taxable year attributable 30 to the accrual of such installment payments, in accordance with regu- 31 lations of the administrator. 32 Sec. 6. Withholding of tax on wages.--General.--On or after the first 33 payroll period beginning forty-five days after the date this local law 34 becomes effective every employer maintaining an office or transacting 35 business within this state and making payment of any wages taxable under 36 this local law shall deduct and withhold from such wages for each 37 payroll period a tax computed in such manner as to result, so far as 38 practicable, in withholding from the employee's wages during each calen- 39 dar year an amount substantially equivalent to the tax reasonably esti- 40 mated to be due from the employee under this local law. The method of 41 determining the amount to be withheld shall be prescribed by regulations 42 of the administrator. 43 Sec. 7. Withholding of tax on wages for taxable periods commencing on 44 or after January first, nineteen hundred seventy-six.--The provisions 45 contained in sections six, eight, nine, ten, eleven and twelve of this 46 local law shall not be applicable to taxes imposed for taxable periods 47 commencing on or after January first, nineteen hundred seventy-six 48 provided however, with respect to such periods, the provisions contained 49 in part five of article twenty-two of the tax law shall be applicable 50 with the same force and effect as if those provisions had been incorpo- 51 rated in full in this section except where inconsistent with the 52 provisions of this article, except that the term "aggregate amount" 53 contained in paragraphs one, two and three of subsection (a) of section 54 six hundred seventy-four of the tax law shall mean the aggregate of the 55 aggregate amounts of New York state personal income tax, city earnings 56 tax on nonresidents and city personal income tax on residents authorizedA. 3998 9 1 pursuant to article thirty of the tax law required to be deducted and 2 withheld and provided, however, that the provisions of such paragraphs 3 shall not be applicable to employer's returns required to be filed with 4 respect to taxes required to be deducted and withheld during the calen- 5 dar year nineteen hundred seventy-six, but such returns shall be 6 required to be filed with the commissioner of taxation and finance at 7 the times and in the manner provided for in subsection (a) of section 8 ten of this local law, except the term "administrator" in such 9 subsection shall be read as "commissioner of taxation and finance." 10 Sec. 8. Information statement for employee.--Every employer required 11 to deduct and withhold tax under this local law from the wages of an 12 employee, shall furnish to each such employee in respect of the wages 13 paid by such employer to such employee during the calendar year on or 14 before February fifteenth of the succeeding year, or, if his or her 15 employment is terminated before the close of such calendar year, within 16 thirty days from the date on which the last payment of the wages is 17 made, a written statement as prescribed by the administrator showing the 18 total amount of wages paid by the employer to the employee, the amount 19 of wages paid for services performed within the city, the amount 20 deducted and withheld as tax, and such other information as the adminis- 21 trator may prescribe. 22 Sec. 9. Credit for tax withheld.--Wages upon which tax is required to 23 be withheld shall be taxable under this local law as if no withholding 24 were required, but any amount of tax actually deducted and withheld 25 under this local law in any calendar year shall be deemed to have been 26 paid on behalf of the employee from whom withheld, and such employee 27 shall be credited with having paid that amount of tax in such calendar 28 year. For a taxable year of less than twelve months, the credit shall 29 be made under regulations of the administrator. 30 Sec. 10. Employer's return and payment of withheld taxes.--(a) Gener- 31 al.--On or after the first payroll period beginning forty-five days 32 after the effective date of this local law, every employer required to 33 deduct and withhold tax under this local law shall, for each calendar 34 month, on or before the fifteenth day of the month following the close 35 of such calendar month file a withholding return as prescribed by the 36 administrator and pay over to the administrator or to the depository 37 designated by the administrator, the taxes so required to be deducted 38 and withheld, except that for the month of December in any year the 39 returns shall be filed and the taxes paid on or before January thirty- 40 first of the succeeding year. Where the aggregate amount required to be 41 deducted and withheld by any employer under this local law and under any 42 local law imposing a tax on personal income of residents of the city 43 adopted by the city pursuant to authority granted by the general city 44 law is less than twenty-five dollars in a calendar month and the aggre- 45 gate of such taxes for the semi-annual period ending on June thirtieth 46 and December thirty-first can reasonably be expected to be less than one 47 hundred fifty dollars, the administrator may, by regulation, permit an 48 employer to file a return on or before July thirty-first for the semi- 49 annual period ending on June thirtieth and on or before January thirty- 50 first for the semi-annual period ending on December thirty-first. The 51 administrator may, if he or she believes such action necessary for the 52 protection of the revenues, require any employer to make a return and 53 pay to him the tax deducted and withheld at any time, or from time to 54 time. Where the amount of wages paid by an employer is not sufficient 55 under this local law and under any local law imposing a tax on personal 56 income of residents of the city adopted by the city pursuant to authori-A. 3998 10 1 ty granted by the general city law to require the withholding of tax 2 from the wages of any of his or her employees, the administrator may, by 3 regulation, permit such employer to file an annual return on or before 4 February twenty-eighth of the following calendar year. 5 (b) Combined returns.--The administrator may by regulation provide 6 for the filing of one return which shall include the return required to 7 be filed under this section, together with the employer's return 8 required to be filed under any local law imposing a tax on personal 9 income of residents of the city adopted by the city pursuant to authori- 10 ty granted by the general city law. 11 (c) Deposit in trust for city.--Whenever any employer fails to 12 collect, truthfully account for, pay over the tax, or make returns of 13 the tax as required in this section, the administrator may serve a 14 notice requiring such employer to collect the taxes which become collec- 15 tible after service of such notice, to deposit such taxes in a bank 16 approved by the administrator, in a separate account, in trust for the 17 city and payable to the administrator, and to keep the amount of such 18 tax in such account until payment over to the administrator. Such 19 notice shall remain in effect until a notice of cancellation is served 20 by the administrator. 21 Sec. 11. Employer's liability for withheld taxes.--Every employer 22 required to deduct and withhold the tax under this local law is hereby 23 made liable for such tax. For purposes of assessment and collection, 24 any amount required to be withheld and paid over to the administrator, 25 and any additions to tax, penalties and interest with respect thereto 26 shall be considered the tax of the employer. Any amount of tax actually 27 deducted and withheld under this local law shall be held to be a special 28 fund in trust for the city. 29 No employee shall have any right of action against his or her employer 30 in respect to any monies deducted and withheld from his or her wages and 31 paid over to the administrator in compliance or in intended compliance 32 with this local law. 33 Sec. 12. Employer's failure to withhold.--If an employer fails to 34 deduct and withhold the tax, as required, and thereafter the tax against 35 which such tax may be credited is paid, the tax so required to be 36 deducted and withheld shall not be collected from the employer, but the 37 employer shall not be relieved from liability for any penalties, inter- 38 est or additions to the tax otherwise applicable in respect of such 39 failure to deduct and withhold. 40 Sec. 13. Returns and payment of tax.--On or before the fifteenth day 41 of the fourth month following the close of the taxable year, every 42 person subject to the tax shall make and file a return and any balance 43 of the tax shown due on the face of such return shall be paid therewith. 44 The administrator may, by regulation, provide for the filing of returns 45 and payment of the tax at such other times as he or she deems necessary 46 for the proper enforcement of this local law. The administrator may 47 also provide by regulation that any return otherwise required to be made 48 and filed under this local law by any nonresident individual need not be 49 made and filed if such nonresident individual had, during the taxable 50 year to which the return would relate, no net earnings from self-employ- 51 ment within the city. Any regulation allowing such waiver of return may 52 provide for additional limitations on and conditions and prerequisites 53 to the privilege of not filing a return. 54 Sec. 14. Combined returns, employer's returns and payments.--The state 55 tax commission may require: 56 (1) The filing of any or all of the following:A. 3998 11 1 (A) A combined return which in addition to the return provided for in 2 a local law authorized by this article may also include returns required 3 to be filed under a local law authorized by article thirty of the tax 4 law and under article twenty-two of the tax law. 5 (B) A combined employer's return which in addition to the employer's 6 return provided for in a local law authorized by this article may also 7 include employer's returns required to be filed under a local law 8 authorized by article thirty of the tax law and under article twenty-two 9 of the tax law. 10 (2) Where a combined return or employer's return is required, and with 11 respect to the payment of estimated tax, the state tax commission may 12 also require payment of a single amount which shall be the total of the 13 amounts (total taxes less any credits or refunds) required to be paid 14 with the returns or employer's returns or in payment of estimated tax 15 pursuant to the provisions of local laws imposed under the authority of 16 this article, article thirty of the tax law and pursuant to the 17 provisions of article twenty-two of the tax law. 18 Sec. 15. Effect of invalidity in part; inconsistencies with other 19 laws.--(a) If any clause, sentence, paragraph, subsection, section, 20 provision or other portion of this local law or the application thereof 21 to any person or circumstances shall be held to be invalid, such holding 22 shall not affect, impair or invalidate the remainder of this local law 23 or the application of such portion held invalid, to any other person or 24 circumstances, but shall be confined in its operation to the clause, 25 sentence, paragraph, subsection, section, provision or other portion 26 thereof directly involved in such holding or to the person and circum- 27 stances therein involved. 28 (b) If any provision of this local law is inconsistent with, in 29 conflict with, or contrary to any other provision of law, such provision 30 of this local law shall prevail over such other provision and such other 31 provision shall be deemed to have been amended, superseded or repealed 32 to the extent of such inconsistency, conflict or contrariety. 33 § 25-n. Administrative provisions. (a) General. Any local law adopted 34 pursuant to this article shall also contain provisions necessary and 35 appropriate for the collection and the administration of the tax herein 36 authorized, except that with respect to any taxable year beginning in 37 nineteen hundred seventy, until and including the thirty-first day of 38 December, nineteen hundred seventy-one, any local law adopted pursuant 39 to this article shall contain the same provisions as are contained in 40 chapter nineteen of title eleven of the administrative code of the city 41 of New York, but "administrator" shall be read "state tax commission"; 42 "administrative agencies of the city" shall be read as "administrative 43 agencies of the state"; "depositories or financial agents of the city" 44 shall be read as "depositories or financial agents of the state"; "offi- 45 cers or employees of the department of finance of the city" shall be 46 read "officers or employees of the state department of taxation and 47 finance"; in sections 11-1934, 11-1936, 11-1939, and 11-1942 (except for 48 the last sentence thereof) of chapter nineteen of title eleven of the 49 administrative code of the city of New York "city" shall be read as 50 "state"; "corporation counsel or other appropriate officer of the city" 51 or "corporation counsel of the city" shall be read as "state attorney 52 general"; and the words "it" or "its" shall apply instead of the 53 pronouns used where the reference is to state tax commission. Provided, 54 however, with respect to declarations of estimated tax and payments of 55 such tax and the withholding tax requirements, until and including the 56 thirty-first day of December, nineteen hundred seventy-one, any suchA. 3998 12 1 terms shall be so read with respect to any taxable year or other period 2 beginning in nineteen hundred seventy-one. 3 (b) Methods of review.--Such local law shall also contain provisions 4 substantially the same as the following: 5 (i) Any final determination of the amount of any tax payable hereunder 6 shall be reviewable for error, illegality or unconstitutionality or any 7 other reason whatsoever by a proceeding under article seventy-eight of 8 the civil practice law and rules if application therefor is made to the 9 supreme court within four months after the giving of the notice of such 10 final determination, provided, however, that any such proceeding under 11 article seventy-eight of the civil practice law and rules shall not be 12 instituted unless (A) the amount of any tax sought to be reviewed, with 13 such interest and penalties thereon as may be provided for by local law 14 or regulation, shall be first deposited and there is filed an undertak- 15 ing, issued by a surety company authorized to transact business in this 16 state and approved by the superintendent of financial services of this 17 state as to solvency and responsibility, in such amount as a justice of 18 the supreme court shall approve to the effect that if such proceeding be 19 dismissed or the tax confirmed the petitioner will pay all costs and 20 charges which may accrue in the prosecution of such proceeding or (B) at 21 the option of the petitioner such undertaking may be in a sum sufficient 22 to cover the taxes, interest and penalties stated in such determination 23 plus the costs and charges which may accrue against it in the prose- 24 cution of the proceeding, in which event the petitioner shall not be 25 required to pay such taxes, interest or penalties as a condition prece- 26 dent to the application. 27 (ii) Where any tax imposed hereunder shall have been erroneously, 28 illegally or unconstitutionally collected and application for the refund 29 thereof duly made to the proper fiscal officer or officers, and such 30 officer or officers shall have made a determination denying such refund, 31 such determination shall be reviewable by a proceeding under article 32 seventy-eight of the civil practice law and rules, provided, however, 33 that such proceeding is instituted within four months after the giving 34 of the notice of such denial, that a final determination of tax due was 35 not previously made, and that an undertaking is filed with the proper 36 fiscal officer or officers in such amount and with such sureties as a 37 justice of the supreme court shall approve to the effect that if such 38 proceeding be dismissed or the tax confirmed, the petitioner will pay 39 all costs and charges which may accrue in the prosecution of such 40 proceeding. 41 (iii) No assessment of additional tax shall be made after the expira- 42 tion of more than three years from the date of the filing of the return 43 except that where no return has been filed or, in the case of the filing 44 of a wilfully false or fraudulent return with intent to evade the tax, 45 the tax may be assessed at any time; provided, however, where a taxpayer 46 omits from his or her return an amount which should be properly included 47 therein which is in excess of twenty-five percent of the amount of the 48 gross income derived by him or her from any trade or business, no 49 assessment of additional tax shall be made after the expiration of more 50 than six years from the date of the filing of the return, except as 51 otherwise provided herein. 52 (c) Bulk sales.-- Such local law may contain a provision substantially 53 the same as the following: 54 Whenever there is made a sale, transfer or assignment in bulk of any 55 part or the whole of a stock of merchandise or of fixtures, or merchan- 56 dise and of fixtures pertaining to the conducting of the business of theA. 3998 13 1 seller, transferrer or assignor, otherwise than in the ordinary course 2 of trade and in the regular prosecution of said business, the purchaser, 3 transferee or assignee shall at least ten days before taking possession 4 of such merchandise, fixtures, or merchandise and fixtures, or paying 5 therefor, notify the administrator by registered mail of the proposed 6 sale and of the price, terms and conditions thereof, whether or not the 7 seller, transferrer or assignor, has represented to, or informed the 8 purchaser, transferee or assignee, that it owes any tax pursuant to this 9 local law, whether or not the purchaser, transferee or assignee has 10 knowledge that such taxes are owing, and whether or not any such taxes 11 are in fact owing. 12 Whenever the purchaser, transferee or assignee shall fail to give the 13 notice to the administrator required by the preceding paragraph, or 14 whenever the administrator shall inform the purchaser, transferee or 15 assignee that a possible claim for such tax or taxes exists, any sums of 16 money, property or choses in action, or other consideration, which the 17 purchaser, transferee or assignee is required to transfer over to the 18 seller, transferrer or assignor shall be subject to a first priority 19 right and lien for any such taxes theretofore or thereafter determined 20 to be due from the seller, transferrer or assignor to the city, and the 21 purchaser, transferee or assignee is forbidden to transfer to the sell- 22 er, transferrer or assignor any such sums of money, property or choses 23 in action to the extent of the amount of the city's claim. For failure 24 to comply with the provisions of this subdivision the purchaser, trans- 25 feree or assignee, in addition to being subject to liabilities and reme- 26 dies imposed under any provisions of law, shall be personally liable for 27 the payment to the city of any such taxes, theretofore or thereafter 28 determined to be due to the city from the seller, transferrer or assig- 29 nor and such liability may be assessed and enforced in the same manner 30 as the liability for tax is imposed under this local law. 31 (d) Delegation of functions.--The local law may provide that the 32 administrator of the tax imposed, as defined in the local law, may dele- 33 gate his or her powers and functions under the local law to one of his 34 or her deputies or to any employee or employees of his or her department 35 and authorize banks or trust companies which are depositories or finan- 36 cial agents of the city to receive and give a receipt for any tax 37 imposed under the local law. 38 (e) The provisions contained in subsections (a), (b), (c) and (d) 39 shall not be applicable with respect to taxes imposed for taxable peri- 40 ods commencing on or after January first, nineteen hundred seventy-six 41 but, with respect to the tax imposed for such periods the provisions 42 contained in part six of article twenty-two of the tax law and sections 43 six hundred fifty-three, six hundred fifty-eight, six hundred sixty-two 44 and thirteen hundred eleven of the tax law including the provisions of 45 judicial review by a proceeding under article seventy-eight of the civil 46 practice law and rules shall be applicable with the same force and 47 effect as if those provisions had been incorporated in full in this 48 section except where inconsistent with the provisions of this local law. 49 § 25-o. Deposit and disposition of revenues. Revenues resulting from 50 the imposition of the tax authorized by this article shall be paid into 51 the treasury of the city and shall be credited to and deposited in the 52 general fund of such city and shall be available for any lawful city 53 purpose. For taxable years beginning on or after January first, nineteen 54 hundred seventy-six such revenues shall be deposited and disposed of in 55 the same manner as revenues resulting from the imposition of the taxes 56 authorized by article thirty of the tax law.A. 3998 14 1 § 4. Section 1301 of the tax law is amended by adding a new subsection 2 (c) to read as follows: 3 (c) The taxes authorized by this article may be imposed only if the 4 general city law authorizes the adoption of a city tax on the earnings 5 of nonresidents and the city imposing the tax authorized by this article 6 also imposes such tax on the earnings of nonresidents. 7 § 5. The real property tax law is amended by adding a new section 8 556-a to read as follows: 9 § 556-a. Credit against city earnings taxes. 1. Any person who is 10 required to pay a city earnings tax pursuant to article two-E of the 11 general city law shall be given a real property tax credit against real 12 property taxation and special ad valorem levies in an amount equal to 13 the amount of such city earnings tax actually paid by the person. 14 2. Such credit may be transferred from a tenant to an owner in lieu of 15 all, or a portion of, rental payments due to the owner. The owner may 16 then use such credit to lower his or her real property tax liability on 17 the rental property. 18 3. The commissioner shall establish the proper procedure for trans- 19 ferring any real property credits pursuant to this section, and shall 20 create all appropriate paperwork to be signed and/or filed by the tenant 21 and property owner. 22 § 6. The tax authorized by this act shall allow a dollar-for-dollar 23 tax credit for commuters which shall be applied to their local real 24 property tax bill at their local tax assessor's office. 25 § 7. All local tax assessors and real property offices which subscribe 26 to New York state municipal law, are subject to New York state subpoenas 27 and participate in the New York state STAR program shall be entitled to 28 full reimbursement of funds dispersed. 29 § 8. A metropolitan transit authority (MTA) infrastructure bank shall 30 be created to fund capital improvements to the MTA system-wide with the 31 ability for the MTA infrastructure bank to issue both taxable and non- 32 taxable revenue bonds in the municipal marketplace. 33 Net revenues generated from nonresident earnings tax collected by the 34 New York state tax department to be directed to the MTA infrastructure 35 bank biannually to coordinate with bonded debt service obligations. 36 § 9. Separability. If any clause, sentence, paragraph or part of this 37 act shall be adjudged to be unconstitutional or invalid, such judgment 38 shall not affect, impair, or invalidate, the remainder thereof, but 39 shall be confined in its operation to the clause, sentence, paragraph, 40 section or part thereof directly involved in controversy in which such 41 judgment shall have been rendered. 42 § 10. This act shall take effect immediately and shall be deemed to 43 have been in full force and effect on and after July 1, 1999. The tax 44 authorized, administered, enforced and levied in accordance with article 45 2-E and subsection (h) of section 1 of section 25-m of the general city 46 law, and subsection (c) of section 1301 and subsection (b) of section 47 1305 of the tax law shall be continuously computed and shall be adminis- 48 tered, enforced, and levied as if chapter 5 of the laws of 1999 had not 49 been enacted. The commissioner of taxation and finance is authorized to 50 promulgate immediately and on an emergency basis all necessary and 51 reasonable rules and regulations for the timely implementation of this 52 act.
